State v. Whitener

• Court: United States State Supreme Court of South Carolina
• Writing for the Court: PER CURIAM; BAKER, C. J., TAYLOR, J., and MOSS; STUKES and OXNER
• Citation: 225 S.C. 244,81 S.E.2d 784
• Decision Date: 30 March 1954
• Parties: STATE v. WHITENER.

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81 S.E.2d 784 225 S.C. 244 STATE
v.
WHITENER. Supreme Court of South Carolina. March 30, 1954.

[225 S.C. 245] C. T. Graydon, Columbia, R. Aubrey Harley, Newberry, for petitioner-appellant.

Atty. Gen. T. C. Callison, Asst. Atty. Gen. James S. Verner, Sol. T. P. Taylor, Columbia, for respondent.

PER CURIAM.

This matter came before the Supreme Court on a petition for habeas corpus by the defendant-appellant, Guy V. Whitener. Appellant seeks his release on bail from the Richland County Jail, where he is confined pending an appeal to this Court.

Appellant was convicted of rape in the Court of General Sessions for Richland County on December 24, 1953. The jury recommended mercy, and the trial Judge fixed appellant's sentence at 14 years. Within due time appellant's counsel filed a notice of intention to appeal from the conviction to this Court.

No application for bail was made to the trial Judge since Section 7-8 of the 1952 Code provides:

'Bail shall be allowed to the defendant in all cases in which the appeal is from the trial, conviction or sentence for a criminal offense; except that no bail shall be allowed when the defendant shall have been sentenced to death, life imprisonment or for a term exceeding ten years.'

Appellant thereupon applied to this Court for a writ of habeas corpus granting him bail. A writ was issued requiring the Sheriff of Richland County to bring appellant before this Court on January 11, 1954. Motion for bail was opposed by the Attorney General and by the Solicitor of the Fifth Judicial Circuit who prosecuted the case against this appellant.

The State contends that the Supreme Court is without power to grant bail in view of the wording of the statute [225 S.C. 246] quoted above. This statute as now contained in our Code evolved from several earlier statutes, the history of which will be briefly set out here.

Prior to 1884, there was no statute in regard to the granting of bail upon an appeal. The Supreme Court had held in

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State v. Satterwhite, 1883, 20 S.C. 536, 540, that a Circuit Judge, in all cases and after conviction, had the power to admit to bail during the pendency of an appeal.

In the following legislative session, an Act No. 454 of 1884 was passed regulating appeals in criminal cases. The Act provided that: 'Pending such appeal the defendant shall still remain in confinement, unless he give bail in such sum and with such sureties as to the Court shall seem proper: Provided, however, Bail shall not be allowed in case the defendant has been convicted of a capital crime.' This provision, together with the section providing for a stay of the execution of the sentence pending appeal, became Section 1031 of the 1942 Code.

The limitation with which we are here concerned came about as a result of the passage of an Act in 1887, No. 380 which provided that 'it shall not be lawful for any Justice of the Supreme Court, or any Circuit Judge of this State, pending an appeal to the Supreme Court, to grant bail to any person who shall have been convicted of any offense the punishment whereof is death, or imprisonment for life, or imprisonment for any term exceeding ten years.' This statute became Section 1032 of the 1942 Code.

The 1887 Act came before the Court for construction in 1897 in the case of State v. Farris, 51 S.C. 176, 28 S.E. 308, 309, 370. Defendant, sentenced to a term of ten years and one month, applied to the Supreme Court for a writ of habeas corpus for the purpose of procuring bail pending his appeal. The State resisted the granting of bail on the grounds that this Court was without authority to grant bail where the punishment exceeded ten years.

[225 S.C. 247] The Court cited at the outset Section 4 of Article 5 of the Constitution, which provides:

'The supreme court shall have power to issue writs or orders of injunction, mandamus, quo warranto, prohibition, certiorari, habeas corpus, and other original and remedial writs.'

The Court then said:

'This being a power conferred upon the supreme court by the constitution, it might be an interesting inquiry whether such power could be taken away or abridged by an act of the legislature; but, as we are not aware of any statute by which the legislature has undertaken either to abridge or take away such power from this court, we do not deem it either necessary or proper to enter upon such inquiry at this time.'

The Court granted bail on the grounds that it was manifest from the wording of the statute, Section 1032, 1942 Code, that the legislature did not intend to abridge the powers of this Court in granting bail.

In 1943, this Court considered in Nichols v. Patterson, 202 S.C. 352, 25 S.E.2d 155, a case in which a defendant, appealing from a sentence of two years for a violation of the liquor law, claimed the right to bail during appeal. The Court held that the granting of bail was discretionary and refused to upset the action of the Circuit Judge in denying bail.

In 1944, Section 1031, the 1884 Act, was amended to make the granting of bail mandatory in all criminal cases on appeal, except where the punishment has been set at death, life or in excess of ten years. The legislature obviously intended to liberalize the right of bail on appeal.

The amending Act contains the usual provision repealing inconsistent Acts, but it does not mention expressly or even by implication Section 1032,...