State v. Walker, 17383
| Decision Date | 03 February 1958 |
| Docket Number | No. 17383,17383 |
| Citation | 232 S.C. 290,101 S.E.2d 826 |
| Court | South Carolina Supreme Court |
| Parties | The STATE, Respondent, v. R. M. WALKER, Appellant. |
W. Newton Pough, Orangeburg, for appellant.
Robert L. Kilgo, Sol., Darlington, F. Turner Clayton, Cheraw, for respondent.
Appellant was arrested upon a warrant which charged him with statutory rape. He employed an experienced attorney who represented him at a preliminary hearing before the magistrate. Question arose as to the age of the prosecutrix. The attorney conferred over the telephone with the solicitor, representing the State, and it was agreed between the counsel that the charge would be reduced to bastardy and presented to the grand jury.
Upon subsequent indictment, and after continuances of the case upon his motion from term to term for a year, appellant, represented by another attorney, unsuccessfully demurred and moved to quash the indictment upon the grounds: (1) that no arrest warrant had been issued by a magistrate pursuant to Sec. 20-305 of the Code of 1952; and (2) the indictment did not specify the date or place of, quoting from the record, 'the offending act or intimate relationship.' Ground (2) of the motion has been abandoned upon appeal by failure to argue it in the brief.
At the conclusion of the State's case, and again upon all of the evidence, appellant moved for direction of verdict of acquittal upon the ground of the alleged insufficiency of the evidence to convict. The motions were overruled, as was motion upon the same ground for new trial made after verdict of guilty was returned; and appellant was sentenced in accord with Sec. 20-308. He appeals.
The appeal has been presented by yet another attorney for appellant--his third successive counsel. The grounds which have been argued are: (1) the first which was urged upon the motion to quash the indictment, ante; and (2) the claimed insufficiency of the evidence of guilt. Short shrift may properly be made of ground (2). The nineteen-year-old unmarried prosecutrix testified to sexual relations with the appellant and that he is the father of her child. The only evidence for the defense which is in the record is the testimony of the physician who attended the prosecutrix in childbirth, and it did not create an issue with respect to the paternity of the child.
Turning to the remaining ground (1), the agreement above recited between appellant, by his then counsel, and the solicitor, which was made at the time of the preliminary hearing before the magistrate upon the warrant charging rape, constituted waiver by appellant of further proceeding before the magistrate, if that should be held to have been required in the absence of the agreement. But we do not so hold. It was subject to waiver because it was not requisite to the jurisdiction of the Court of General Sessions, as mistakenly contended by appellant.
The relevant statutes are Sections 20-305, 307 and 308 of the Code of 1952, which follow:
Sec. 20-305. 'If any woman be delivered of a bastard child and shall, at any time after the birth thereof, give information to some magistrate of the county in which she resides or may be so delivered and declare, on oath, who is the father of her child such magistrate shall issue a warrant to apprehend and bring before him or some other magistrate the person so accused, who shall be obliged to enter into a recognizance or bond with two good and sufficient sureties in an amount to be fixed by the county judge, circuit judge or any other judge having concurrent jurisdiction with the circuit judge in trying persons charged with bastardy, conditioned for the payment of such sum or sums for the maintenance of such child as therein directed by the court.'
There is another statute, Sec. 15-1383, which applies in certain 'Children's Courts', and is therefore inapplicable here. There was no reference to it in the trial of the case.
That bastardy is a crime and within the jurisdiction of the Court of General Sessions is established by the following decisions: In the leading case of State v. Brewer, 38 S.C. 263, 16 S.E. 1001, 19 L.R.A. 362, which was also an appeal from Chesterfield County, it was held that a charge of bastardy is a criminal offense, for which the accused is indicted and...
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