State v. Walker, 18883

• Citation: 166 S.E.2d 209,252 S.C. 325
• Decision Date: 03 March 1969
• Docket Number: No. 18883,18883
• Court: United States State Supreme Court of South Carolina
• Parties: The STATE, Respondent, v. Ray C. WALKER, Appellant.

Page 209

166 S.E.2d 209

252 S.C. 325

The STATE, Respondent, v. Ray C. WALKER, Appellant.

No. 18883.

Supreme Court of South Carolina.

March 3, 1969.

Blease, Griffith & Stone, Newberry, Burts, Turner & Hammett, Christ Christ, Spartanburg, for appellant.

Sol. William T. Jones, Greenwood, for respondent.

BUSSEY, Justice.

Defendant-appellant was indicted under two indictments, neither of which is contained in the record. In substance it appears that in each of the indictments he was charged in separate counts with resisting an officer, or resisting arrest; assault and battery with intent to kill, and carrying a concealed weapon. He appeared represented by retained counsel and, with respect to both indictments, entered a plea of guilty to the charges of resisting an officer, or resisting arrest, and assault and battery of a high and aggravated nature. The sentence of the court was:

'* * * that Ray C. Walker be confined upon the public works of Newberry County or the State Penitentiary for three years, suspended upon the serving of twelve (12) months and three years probation on both indictments, both indictments to run concurrently.'

Defendant now contends that in each instance his acts of resisting on officer and assault and battery of a high and aggravated nature were inseparable from each other and constituted identical acts, and, hence, that it was error to sentence him to a single general sentence on the separate counts in the indictments, charging separate offenses. Such contention was not made below and is raised for the first time on appeal. It is based solely on the decision of this court in the case of State v. Hollman, 232 S.C. 489, 102 S.E.2d 873. There are a number of distinguishing factors between that case and the instant case which we need not deal with in detail. In that case two justices concurred in the main or controlling opinion, one concurred only in its result, and two justices dissented. Due to such circumstances, the value of that decision as a precedent is, at best, questionable. Hyder v. Metropolitan Life Ins. Co., 183 S.C. 98, 190 S.E. 239; Moseley v. American Nat. Ins. Co., 167 S.C. 112, 166 S.E. 94. In 20 Am.Jur. (2d) 530, Courts, Sec. 195, we find the following language:

'A decision by an equally divided court does not establish a precedent required to be followed under the stare decisis doctrine. And where the members of the court unanimously or by a majority vote reach a decision but cannot, even by a majority, agree on the reasoning therefor no point of law is established by the decision and it cannot be a precedent covered by the stare decisi rule.'

While the writer is aware of no decision contrary to the above quoted general rule, it is unnecessary to a decision of the instant case to determine the value, if any, of the Hollman decision as a precedent, or to consider which of the opinions in that case expresses the sounder view.

We dispose of the principal contention of the defendant on the elementary ground that the question was not raised below, and since it does not go to the jurisdiction of the subject matter of the offenses charged and plead guilty to, defendant is not entitled to raise and have the issue considered on appeal.

Defendant also contends that he was not accorded due process of law and given a fair sentence because the presiding judge was under the impression that no person had the right to resist an arrest even if the arrest was illegal. Such contention is based on the construction placed by defendant's present counsel, retained subsequent to his sentence, upon certain...