State v. Scott, 20518

• Decision Date: 22 September 1977
• Docket Number: No. 20518,20518
• Citation: 269 S.C. 438,237 S.E.2d 886
• Parties: The STATE, Respondent, v. Michael SCOTT, Appellant.
• Court: South Carolina Supreme Court

Page 886

237 S.E.2d 886

269 S.C. 438

The STATE, Respondent, v. Michael SCOTT, Appellant.

No. 20518.

Supreme Court of South Carolina.

Sept. 22, 1977.

David I. Bruck, Columbia, for appellant.

Atty. Gen. Daniel R. McLeod, Asst. Attys. Gen. Joseph R. Barker and Brian P. Gibbes, and Sol. James C. Anders, Columbia, for respondent.

LEWIS, Chief Justice:

Appellant was convicted of attempted armed robbery and assault and battery with intent to kill, receiving consecutive sentences totalling twenty-six (26) years. He now appeals from his conviction and sentence because of alleged trial errors and also from a subsequent denial of a motion in arrest of judgment of the conviction for attempted armed robbery. We find no reversible error and affirm.

Appellant first challenges the jurisdiction of the trial court to try the charge of attempted armed robbery because (1) a requested preliminary hearing on this charge was not held and (2) no indictment for attempted armed robbery was ever returned by the grand jury.

The contention that a preliminary hearing had been timely requested and denied arises out of the following facts set forth in the statement of the case:

On the evening of August 11, 1976, a young woman named Laura Murphey was struck on the head with an iron bar while she walked to her car in the parking lot of the Richland Memorial Hospital in Columbia. The appellant, Michael Scott, was arrested on the scene, and charged in an arrest warrant with the crimes of attempted armed robbery and assault and battery with intent to kill. Scott was committed to the Richland County jail in lieu of $3,500 bond, and thereafter made a timely request for preliminary hearings as to both charges alleged in the arrest warrant.

These hearings were scheduled to be heard on September 8, 1976, in the Columbia Municipal Court. However, the charge of attempted armed robbery was nolle prossed by the City Attorney immediately prior to the commencement of the hearing, and accordingly a preliminary hearing was held only as to the charge of assault and battery with intent to kill. The only witness to testify at the hearing was an eyewitness to the assault on Miss Murphey, and no mention was made of any alleged robbery attempt. The charge of assault and battery with intent to kill was bound over, and the original arrest warrant was forwarded to General Sessions Court with a notation that only the assault charge had been heard. Despite the dropping of the attempted armed robbery charge, Scott's bond was not reduced, and he remained in jail under $3,500 bond until his trial.

During the week preceding appellant's indictment and trial, the Solicitor furnished appellant's counsel with a docket list indicating that appellant would be indicted and brought to trial for assault and battery with intent to kill. However, counsel was advised late in the week that the Solicitor would also seek an indictment for attempted armed robbery.

Appellant's case was called for trial on both charges before the Court of General Sessions for Richland County on Monday, November 15, 1976, the Honorable James H. Price, Jr., presiding. After appellant's motions to quash the indictment alleging attempted armed robbery or to continue the armed robbery case were denied, the case proceeded to trial before a jury.

Appellant argues that, under the provisions of Section 22-5-320 of the 1976 Code, the trial court was without jurisdiction to try the charge of attempted armed robbery since the timely request for a preliminary hearing on that charge had not been granted. After a warrant has been issued, Section 22-5-320 requires that a preliminary hearing be granted and held upon a demand in writing of the defendant made at least ten days before the convening of the next Court of General Sessions. The statute further provides:

When such a hearing has been so demanded the case shall not be transmitted to the court of general sessions or submitted to the grand jury until the preliminary hearing shall have been had, the magistrate to retain jurisdiction and the court of general sessions not to acquire jurisdiction until after such preliminary hearing.

As the agreed statement shows, the City Attorney entered a nolle prosequi of the charge of attempted armed robbery immediately before the commencement of the preliminary hearing and proceeded only on the charge of assault and battery with intent to kill. The parties agree that the City Attorney had the authority to enter the nolle prosequi and that question is not involved. The City Recorder found a probable case of assault and battery and forwarded the original arrest warrant to the General Sessions Court with the notation that only the assault and battery charge was involved in the preliminary hearing. The position of appellant is that, since he made a timely request for a preliminary as to both the charge of assault and battery and the charge of attempted armed robbery and no preliminary hearing was held on the charge of attempted armed robbery, the court acquired no jurisdiction of the latter offense because jurisdiction remained in the Recorder's Court, under Code Section 22-5-320, until the requested hearing was held. Appellant contends that the nolle prosequi of the attempted armed robbery charge by the City Recorder did not extinguish his right to a preliminary hearing granted by the statute, arguing that "any reinstatement of the identical charge, absent a withdrawal of his request for a preliminary hearing, had to occur in the magistrate's (recorder's) court."

The fallacy in the foregoing argument of appellant lies in the fact that the nolle prosequi of the charge before the magistrate or recorder was not a final determination of the charge and did not bar a subsequent prosecution through indictment by the grand jury. State v. Gaskins, 263 S.C. 343, 210 S.E.2d 590; State v. Messervey, 105 S.C. 254, 89 S.E. 662.

The indictment procedure used to reinstate the charge of attempted armed robbery is identical to the procedure which may be used in the situation where a magistrate has discharged a defendant pursuant to Code Section 22-5-320.

As stated by Judge Hemphill in Williams v. State of South Carolina, D.C., 237 F.Supp. 360, 370:

Under South Carolina Law, Section 43-231, 1962 Code, (now Section 22-5-320, 1976 Code), a magistrate may discharge a defendant. This obviously means discharge from custody, since a magistrate does not have jurisdiction to acquit a defendant charged with murder.

The defendant may be indicted and tried without regard to the finding of the hearing magistrate at a preliminary hearing. Indeed, a crime may be charged initially by indictment, in which case there is no right to a preliminary hearing at all. State v. Nesmith, 213 S.C. 60, 66, 48 S.E.2d 595.

Accord, State v. Sanders, 251 S.C. 431, 163 S.E.2d 220.

We, therefore, hold that Section 22-5-320 did not deprive the General Sessions Court of jurisdiction in this case, where a nolle prosequi was entered subsequent to the demand for a preliminary hearing and the charge was later reinstated through indictment by the grand jury. The indictment by the grand jury for attempted armed robbery was, in effect, an initial prosecution under which the defendant had no right to a preliminary hearing.

Neither is there merit in appellant's contention that the reinstatement of the charge of attempted armed robbery deprived him of due process of law. Appellant's counsel was familiar with the circumstances relating to the robbery charge and was aware three or four days before appellant's trial that the State would seek an indictment for that offense. The record fails to sustain appellant's claim of surprise or that the procedure followed by the State was so fundamentally unfair as to deprive him of due process of law.

Appellant also alleges that the trial court was without jurisdiction because an indictment for attempted armed robbery was never returned by the grand jury. The facts fail to support these allegations.

The charges in this case were entered on printed forms. The charge of assault and battery with intent to kill was entered on a one-page printed form on the back of which was printed: "Indictment for assault and battery with intent to kill." The charge of attempted armed robbery was entered on a one-page printed form on the back of which was printed: "Indictment for armed robbery, robbery and grand larceny." Each printed form, if presented separately, would have charged the offense indicated without reference to the other. The two forms or pages were, however, stapled together, with the page charging attempted armed robbery on top and that charging assault and battery on the bottom or back. The pages, when stapled together as one indictment, set forth two counts, although the pages or counts were both designated "count one". Therefore, the outside or back of the two-page indictment was the page or form charging assault and battery. This outside page was endorsed with the words "True Bill" and the signature of the foreman of the grand jury. The back of the page containing the attempted armed robbery charge bears no endorsement or separate indication of grand jury action.

We think the record amply sustains the conclusion that the present indictment consisted of two counts, each on separate pages, with the pages stapled together and the action of the grand jury endorsed on the back of the last page in the place indicated for that purpose. This procedure was proper. 42 C.J.S. Indictments and Informations § 35.

The present indictment was presented to the grand jury and returned by it as a two-count indictment charging two crimes arising out of the same circumstances. It vested jurisdiction of the case in the trial court.

The next assignment of error concerns the ruling of the trial judge requiring the appellant to present his evidence first in a suppression hearing on the admissibility of a purported confession.

At the beginning of the...