State v. Spencer
| Decision Date | 05 September 1935 |
| Docket Number | 14134. |
| Citation | 181 S.E. 217,177 S.C. 346 |
| Parties | STATE v. SPENCER. |
| Court | South Carolina Supreme Court |
Appeal from Common Pleas Circuit Court of Cherokee County; H. F Rice, Judge.
Grady Spencer was convicted of transportation and possession of alcoholic liquors containing in excess of 1 per cent. of alcohol, and he appeals.
Reversed and remanded with directions.
C. T Graydon, of Columbia, for appellant.
Samuel R. Watt, of Spartanburg, for the State.
Appellant being charged with transporting and having in his possession alcoholic liquors containing in excess of 1 per cent. of alcohol, used as a beverage, employed Hon. C. T. Graydon, an attorney at law, practicing at Columbia, S. C., to defend him on said charges. The record discloses that appellant had sought the services of other attorneys prior to employing Mr Graydon, but of this fact, Mr. Graydon had no knowledge at the time he agreed to defend the case.
Upon the convening of the court of general sessions for Cherokee county at the county seat, Gaffney, on the 18th day of March 1935, a bill of indictment, containing two counts, in the manner and form as follows, was handed by the solicitor to the grand jury:
That Pink Davis and Grady Spencer at Cherokee Court House in the County of Cherokee and State aforesaid, on the 11th day of February in the year of our Lord one thousand nine hundred and 35 did wilfully and unlawfully receive, accept and have in his possession alcoholic liquors containing more than one per cent of alcohol and used as a beverage and if drunk to excess produces intoxication against the form of the statute in such case made and provided, and against the peace and dignity of the State.
4th. And the Jurors aforesaid, upon their oath aforesaid, do further present,
That Pink Davis and Grady Spencer at Cherokee Court House in the County of Cherokee and State aforesaid, on the 11th day of February in the year of our Lord one thousand nine hundred and 35 did wilfully and unlawfully transport and convey from place to place within this State alcoholic liquors used as a beverage, which contain more than one per cent of alcohol and which if drunk to excess produces intoxication against the form of the Statute in such case made and provided, and against the peace and dignity of the State.
Samuel R. Watt, Solicitor."
On the same day the grand jury returned a true bill on said indictment.
On March 9, 1935, Hon. C. T. Graydon was commissioned as a special judge to hold a court at Anderson, S. C., and acting under instructions from Hon. John G. Stabler, Senior Associate Justice, Acting Chief Justice (now Chief Justice), he proceeded to Anderson and there presided as the judge of the court in the place of Hon. W. H. Townsend, deceased, until Friday, March 15, 1935, when said court at Anderson was recessed until Monday, March 18, 1935. It was on Saturday, March 16, that appellant employed Mr. Graydon. Immediately upon acceptance of the employment, Mr. Graydon advised Hon. Hayne F. Rice, the circuit judge scheduled to hold the court at Gaffney, and the judge who actually held the court, of the conflict of engagements, and requested a continuance of the case against appellant, also writing the solicitor, and sending him a copy of his letter to Judge Rice. Mr. Graydon returned to Anderson, S. C., and resumed his official duties of special judge on Monday morning, March 18. At about 11:30 o'clock a. m. on said last-mentioned day, Special Judge Graydon received a telegram from Hon. Sam R. Watt, solicitor, stating efforts on the part of appellant to procure a continuance of the case against him, and advising that he would insist on an immediate trial. Mr. Graydon forthwith advised the solicitor that he was actually engaged in holding court and insisted upon a continuance of the case. Apparently after the solicitor sent the telegram to Mr. Graydon at Anderson and before receiving the telegram of Mr. Graydon, the solicitor, upon the grand jury returning a true bill, undertook to call the case for trial. After argument on the part of the solicitor, and a statement by the appellant, the presiding judge advised appellant that he would not continue his case, for the term, but finally agreed to give him until Wednesday afternoon to either get Mr. Graydon there or to employ other counsel.
The trial work of the court at Anderson was completed about 12 o'clock on Tuesday, March 19, and instead of remaining in Anderson for the purpose of signing orders and attending to other matters in connection with the holding of said court, Mr. Graydon instructed that said orders and matters be sent him at Columbia, S. C., from which point he continued to perform the duties of a circuit judge, actually signing orders on March 20.
Early on the morning of March 20, Mr. Graydon again wired the solicitor insisting on a continuance of the case because of conflicting engagements, and the impossibility of making any preparation for the trial of the case, and in reply received a telegram reading as follows:
While Mr. Graydon was making every effort to complete his duties as special judge, intending to go to Gaffney at the earliest moment, the case against appellant was again called for trial on Wednesday, March 20, at about 2:30 p. m., and over the protests of appellant, he having stated to the court that he had spent such money as he had in the employment of Mr. Graydon and could not employ other counsel, the defendant was tried, convicted on the two counts of the indictment hereinabove set out, and sentenced, and at about 4 o'clock Mr. Graydon received a telegram from appellant, as follows:
The first five exceptions allege error, and abuse of discretion on the part of the trial judge in ordering the case to trial under the circumstances hereinbefore set forth.
"It is established law in this state that the matter of continuance rests in the sound discretion of the presiding judge, and his ruling will not be interfered with unless there is a clear showing of abuse of that discretion." Edwards v. Union Buffalo Mills Co., 162 S.C. 17, 159 S.E. 818, 819.
Merchants' F. & P. Co. v. American L. & B. Corp., 165 S.C. 394, 164 S.E. 17.
There can be no set and definite rule laid down governing continuances, but rather each motion or request for a continuance must necessarily depend upon all the surrounding circumstances, and when these circumstances are ascertained, it is then for the trial judge to determine if justice demands or warrants a continuance.
In the instant case the defendant (appellant in this court) was indicted on March 18, 1935. The crimes with which he was charged were misdemeanors. He was tried, convicted, and sentenced at the same term of court, and within two days of the finding of a true bill against him. He had employed an able and outstanding attorney of this state to represent him. It was a presumption of law that he was innocent until convicted. His attorney, and he had only one, was from Monday, March 18, to Tuesday at about 12 o'clock engaged in actual trial work, and on Wednesday, March 20, the day on which defendant was tried, convicted, and sentenced, engaged in the signing of orders and attending to other of his official duties as special judge. In other words, his regularly employed counsel was performing the duties of an officer of this court, public duties, at no doubt inconvenience and financial loss to himself. The witnesses against appellant were all officers of Cherokee county, therefore presumably residents of that county and easily obtainable for the purpose of testifying at the next term of the court of general sessions for said county.
Counsel for appellant cites in his printed argument the case of Hopkins v. Smathers, 114 S.C. 488, 104 S.E. 30, a much weaker case on the facts than the one at bar, in which this court held that it was an abuse of discretion to refuse a continuance of a case in a county court where counsel for the moving party was engaged in the trial of cases in the court of general sessions, a superior court, although counsel actually appeared and represented his client in the trial in the county court.
Where an attorney is acting under the orders of this court and performing official duties of a public nature, he should be free from the annoyance of even the threat of a trial of his clients, so that his undivided attention may be given to the official duties to be performed.
We are constrained to hold that under the circumstances of this case it was an abuse of discretion not to grant a continuance.
It is unnecessary, in view of the further holding of this court, to pass upon the remaining exceptions raised by the appeal, and possibly it was unnecessary to pass upon any of the exceptions.
After the perfection of the appeal in this case, and the filing of the transcript of record, to wit, on May 14, 1935, a new temperance law for the state of South...
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State v. Gilliam
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