State v. Rabens

• Decision Date: 21 February 1908
• Citation: State v. Rabens, 79 S.C. 542, 60 S.E. 442 (S.C. 1908)
• Parties: STATE v. RABENS. [*]
• Court: South Carolina Supreme Court

60 S.E. 442

79 S.C. 542

STATE v. RABENS. ^[*]

Supreme Court of South Carolina

February 21, 1908

Appeal from General Sessions Circuit Court of Oconee County; Ernest Gary, Judge.

H Rudolph Rabens was convicted of receiving stolen property and appeals. Affirmed.

W Turner Logan and R. T. Jaynes, for appellant.

Solicitor Boggs, for the State.

WOODS J.

The count of the indictment on which H. Rudolph Rabens was tried and convicted, in his absence, charged him with the misdemeanor of receiving, with guilty knowledge, from James Johnson, John Fisher, and John F. McCarthy, $8,338.81, stolen by them from the safe of the Courtenay Manufacturing Company. His counsel, earnestly contending that he has not had a fair trial according to law, attack almost every step in the proceedings. The objections to the irregularity of the proceedings before trial were made by motion to quash the indictment, on the grounds now to be considered.

Magistrate Crisp, of Oconee county, on January 18, 1907, issued the warrant for housebreaking, larceny, and receiving stolen goods. Rabens being a resident of Charleston, Magistrate Rouse of that county indorsed the warrant, and authorized a special constable to execute it, under section 37, Cr. Code 1902. On January 24, 1907, defendant entered into a recognizance before Magistrate Rouse in the sum of $5,000, conditioned that he should "personally appear before A. P. Crisp, magistrate in Oconee county, in the state aforesaid, to be holden at the usual place of judicature, in Oconee county, on February 4, 1907, then and there to answer to a preliminary hearing of charges to be preferred against him, the said Rudolph Rabens, and to do and receive what shall be enjoined by the court." The law contemplates the exact procedure adopted by the magistrate, and the exception alleging Magistrate Rouse to have been without authority to take the recognizance cannot be sustained. Under the common law the magistrate issuing the warrant might so frame it as to require the person accused to be brought before him or any other magistrate of the same county. Pressley's Law of Magistrates, 498; 22 Enc. of Pl. & Pr. 1085. In a case where the warrant is issued and the defendant cannot be found in the county, the warrant cannot be executed according to its terms, but must be sent to a magistrate in the county where the defendant is to be found, and indorsed by him, with a new mandate for arrest. This indorsement is not indeed a new warrant, but it is such a modification of the warrant as issued as to make it proper for the defendant to be brought before the indorsing magistrate, and, when before him, the magistrate may admit the accused to bail under section 28, Cr. Code 1902. The indorsing magistrate cannot hold the preliminary examination, because section 24, Cr. Code 1902, inposes that duty on the magistrate who issues the warrant. A bail bond for appearance at a preliminary examination is not invalid, for such a bond is good, if it binds the defendant to appear before some court of competent jurisdiction and abide the judgment of the court. The recognizance in this instance bound the defendant to appear for the preliminary examination before the magistrate who was required by law to hold the examination, and was therefore valid. Rabens did not appear in person for the examination, as required by the terms of his recognizance, but his counsel, Mr. Jaynes, did appear in his behalf. The solicitor exhibited to the magistrate an indictment found by the grand jury, charging the defendant with receiving stolen goods. Counsel for the defendant insisted on an examination of the state's witnesses, and demanded the right to cross-examine them under section 24, Cr. Code 1902. The magistrate held the defendant's failure to appear to be a waiver of the preliminary examination, and sent the case to the court of general sessions. The decision of the magistrate was clearly right. A preliminary examination must have one of three results, dependent on the decision of the magistrate-the discharge of the defendant, the taking of bail for his appearance to answer an indictment, or his imprisonment. It may be the magistrate, in the absence of the defendant, could adjudge his discharge; but, to take bail from the defendant, or commit him to jail, it was manifestly necessary for him to be present in person. The defendant could not demand that the magistrate go through the empty form of conducting an examination which could have no efficient result. By failing to appear in person he had forfeited his recognizance ( State v. Minton, 19 S.C. 280), and he waived his preliminary examination when by voluntary absence he made it impossible for the magistrate to enforce his judgment.

The case was called by Magistrate Crisp for preliminary hearing on 4th February, 1907, at 8 o'clock p. m. On the same day, at 5:50 o'clock p. m., in the court of general sessions for Oconee county, the grand jury had returned a true bill on an indictment charging the defendant with receiving stolen goods exceeding $20 in value. On the next morning (February 5th) another indictment was given out on which the grand jury found a true bill charging the defendant with being accessory to the theft before and after the fact, and with receiving stolen goods. It was on the last count of the second indictment that the defendant was convicted. The motion to quash the indictment cannot prevail on the ground that the grand jury could not find a true bill while the preliminary examination was pending. State v. Bowman, 43 S.C. 108, 20 S.E. 1010; State v. Bullock, 54 S.C. 313, 32 S.E. 424; State v. Brown, 62 S.C. 374, 40 S.E. 776. Even if it be considered, the case was not one of such emergency as to call for action of the solicitor or grand jury, pending proceedings before the magistrate. This could not avail, for the indictment on which the defendant was tried was not sent to the grand jury until after the defendant had, by failing to appear, waived the preliminary examination, and the magistrate had thereupon sent the case to the court of general sessions. Assuming the defendant did not intend to waive the examination, he well knew if the judgment of the magistrate should be against him the case would be sent to the court of general sessions for the trial and it was his duty to be there to meet it.

Briefly restated, the defendant's status before the court was this: He had been arrested on a charge, triable only before the court of general sessions for Oconee county, had demanded a preliminary examination, and had given bail for his appearance in person thereat, had failed to appear in person, and thus made default, and had thereby waived the preliminary examination. The magistrate had thereupon sent the cause to the trial court, which was then in session. A true bill had been thereafter found, and the case was before the court for trial. It seems clear that up to this point the defendant had no ground to say any of his legal rights had been violated.

We consider next whether the circuit judge abused judicial discretion in refusing to grant a motion for continuance. On 28th January, 1907, Mr. Jaynes, one of defendant's counsel, wrote to the solicitor, saying it would not be practicable to prepare the case for the February term of court, and requested a consent to...