State v. Wheeler
| Decision Date | 11 December 1972 |
| Docket Number | No. 19533,19533 |
| Citation | 193 S.E.2d 515,259 S.C. 571 |
| Court | South Carolina Supreme Court |
| Parties | The STATE, Respondent, v. Donald WHEELER, Sr., and Donald Woodrow Erwin, Appellants. |
H. R. Swink and Wesley L. Brown, Gaffney, for appellants.
Atty. Gen. Daniel R. McLeod and Asst. Attys. Gen. Emmet H. Clair and Robert M. Ariail, Columbia, and Solicitor John H. Nolen, Spartanburg, for respondent.
The office of Gettys Lumber Company, Inc., in Gaffney, South Carolina, was broken into on January 25, 1970, a safe therein opened and money in the sum of approximately $138.00 and valuable papers were taken therefrom. Shortly thereafter, Donald Wheeler, Sr., and Donald Woodrow Erwin, the appellants herein, were arrested and charged with safecracking, housebreaking and grand larceny in connection therewith.
The record shows that, pursuant to a verbal request of the appellants, a preliminary hearing was held by a magistrate of Cherokee County. Prior to such hearing, the appellants were advised of their rights and they affirmatively waived their right to counsel. The appellants were present at this preliminary hearing, cross-examined the witnesses presented in support of the aforesaid charges and made arguments in their behalf. The appellants did not testify at this hearing. At the close of this preliminary hearing the magistrate took the case under advisement.
The appellants were taken before the Clerk of the Court for Cherokee County for the purpose of having lawyers appointed to represent them if they were indigent. According to the testimony of the Clerk and the Sheriff of said county, the appellants were advised of the charges and of their right to have counsel represent them. They declined the offer of appointed counsel and chose to represent themselves.
The magistrate before whom the preliminary hearing was held, by affidavit, dated March 4, 1971, stated that 'after due deliberation probable cause was found by me and the subject cases against the stated defendants were forwarded to the grand jury for proper disposition.' No contrary showing was made by the appellants.
In late February and early March of 1970, counsel was appointed for each of the appellants. A General Sessions Court was convened in Cherokee County on March 16, 1970, and an indictment was presented to the Grand Jury and a true bill thereon returned, charging the appellants with the offenses above stated. At this term of court the trial of the case was continued on motion of the appellants.
The appellant Donald Woodrow Erwin escoped from the Cherokee County Jail after the continuance was granted. The other appellant was released on bond on another charge and absconded. Thereafter, the appellant Erwin was captured in Virginia, and the appellant Wheeler was taken into custody in Flint, Michigan, and both were returned to the Cherokee County Jail to await trial.
The attorneys for the appellants filed, on February 23, 1971, a demand for a preliminary hearing which was denied. On the same date the appellants served a notice of a motion for an order quashing the indictment on various grounds arising out of the preliminary hearing. The trial judge, after a full hearing, denied the motion to quash.
The appellants were tried at the 1971 March Term of the Court of General Sessions for Cherokee County on the charges of housebreaking and grand larceny, the safecracking charge having been dropped. At the close of the evidence in behalf of the State a motion for a directed verdict in favor of the appellants was made and denied. The appellants offered no evidence and the case was submitted to the jury and a verdict of guilty of housebreaking and grand larceny was returned against both appellants. The appellants made a motion for judgment Non obstante veredicto, and in the alternative, for a new trial. These motions were denied and this appeal followed.
The first question for determination is whether the trial judge erred in finding that the appellants had been afforded a preliminary hearing and in failing to quash the indictment on the ground that the appellants were denied due process of law by reason of the fact that they were not afforded a preliminary hearing.
Pursuant to Section 43--232 of the 1962 Code of Laws, a deefndant charged with crimes beyond the magistrate's jurisdiction is entitled to a preliminary hearing if timely demand is made in writing in accordance with the statute. Failure to conduct such hearing, properly demanded, deprives the Court of General Sessions of jurisdiction to indict or try the defendant. State v. Flintroy, 178 S.C. 89, 182 S.E. 311; State v. Adcock, 194 S.C. 234, 9 S.E.2d 730; Blandshaw v. State, 245 S.C. 385, 140 S.E.2d 784; State v. Sanders, 251 S.C. 431, 163 S.E.2d 220; and State v. Funderburk, S.C., 191 S.E.2d 520.
The only conclusion that can be reached from the record before us is that the appellants made a verbal request for a preliminary hearing and such was held by a magistrate of Cherokee County. The appellants participated in this preliminary hearing by cross-examining the witnesses presented against them and making arguments in their own behalf. It further appears without contradiction that, even though the magistrate took under advisement the question of whether probable cause had been made out, he later found probable cause and transmitted the case to the Court of General Sessions for submission to the grand jury.
The provisions of Section 43--232 which preclude the acquisition of jurisdiction by the Court of General Sessions until after a preliminary hearing is held is conditioned upon the demand for such hearing in writing at least ten days before the convening of the next Court of General Sessions. It is only where timely demand has been made for a preliminary hearing that acquisition of jurisdiction by the Court of General Sessions is delayed. If we should hold that the hearing before the magistrate which was held on January 28, 1970, was not in fact a preliminary hearing, then the position of the appellants fails for the reason that they did not demand such a hearing in writing at least ten days before the convening of the Court of General Sessions for Cherokee County which occurred on March 16, 1970. One may waive the right to a preliminary hearing by simply failing to ask for it in the manner required by Section 43--232 of the Code.
At the time the appellants were indicted by the Grand Jury of Cherokee County, on March 16, 1970, for housebreaking and grand larceny, a preliminary hearing in South Carolina was not a critical stage of criminal proceedings. State v. White, 243 S.C. 238, 133 S.E.2d 320; and State v. Sanders, 251 S.C. 431, 163 S.E.2d 220. However, the United States Supreme Court, on June 22, 1970, in Coleman v. Alabama, 399 U.S. 1, 90 S.Ct. 1999, 26 L.Ed.2d 387, held that a preliminary hearing is a critical stage in the criminal process, and that when there is a preliminary hearing an accused is entitled to the aid of counsel. In State v. Taylor, 255...
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