Tyler v. State
| Decision Date | 30 November 1965 |
| Docket Number | No. 18427,18427 |
| Citation | 145 S.E.2d 434,247 S.C. 34 |
| Parties | John (Joseph) Thomas TYLER, Appellant, v. The STATE of South Carolina and Ellis C. MacDougall, Director of the South Carolina Department of Corrections, Respondents. |
| Court | South Carolina Supreme Court |
Robert E. Kneece, Columbia, for appellant.
Atty. Gen. Daniel R. McLeod, Asst. Atty. Gen. Edward B. Latimer, Columbia, for respondents.
John (Joseph) Thomas Tyler, the petitioner herein, was indicted by the Grand Jury of Richland County at the 1963 September term of the Court of General Sessions and charged with driving and operating an automobile upon one of the public highways of the said county and state on August 6, 1963, while he was under the influence of intoxicating liquor, the same being a thirteenth offense. The indictment set forth the time and place of the previous twelve convictions of the petitioner for driving and operating an automobile while under the influence of intoxicating liquor.
This case was transferred for trial to the Richland County Court, Pursuant to Section 15-768 of the 1962 Code. The petitioner was tried and convicted on February 11, 1964 in said County Court and was sentenced to imprisonment for a term of four years which he is now serving in the State Penitentiary. The petitioner had previously been sentenced, on October 3, 1962, in Marion County, South Carolina, upon a plea of guilty for driving and operating an automobile while under the influence of intoxicating liquor, to serve four years or pay a fine of $3,000.00, provided that upon the service of one year or the payment of $800.00, the balance of said sentence was suspended with probation of four years. Upon the petitioner's conviction in the Richland County Court, the probation sentence herein referred to was revoked and he was ordered to serve the remainder of the original sentence, three years, concurrent with the present sentence. At the trial of the case in the Richland County Court, the petitioner was represented by an attorney retained by him. The record shows that there is now pending an appeal to this Court from the conviction and sentence of the Richland County Court.
The petitioner, with the aid of counsel, other than his original counsel, on September 17, 1964, petitioned the Court of Common Pleas for Richland County for a writ of habeas corpus alleging that he was a prisoner in the State Penitentiary and was there illegally imprisoned and restrained of his liberty, in violation of his constitutional rights under the State and Federal Constitutions. He asserts that he was denied due process of law in that he was tried for a thirteenth offense of driving and operating an automobile while under the influence of intoxicating liquor when no such crime exists under the laws of the State of South Carolina. He further asserts that the inclusion in the indictment of a record of twelve previous convictions was improperly before the jury in violation of the rules of evidence relating to previous crimes. It is further asserted that the inclusion in the indictment of the record of previous offenses inflamed and prejudiced the jury against him and improperly placed his character and reputation in issue.
The State, by way of return, alleged that the petitioner was convicted of operating and driving an automobile while under the influence of intoxicating liquor, thirteenth offense, in the Richland County Court on February 11, 1964, and was sentenced to be imprisoned for a term of four years. It was further alleged that the conviction of the petitioner was in accordance with due process of law and that at the time of his trial he was represented by able counsel of his own choosing. The other allegations of the petition were denied.
A hearing on the issue made by the petition and the return of the State was had before the Honorable John Grimball, Resident Judge of the Fifth Circuit. At the close of the hearing the Trial Judge orally ruled that the petitioner was asking that his conviction be set aside 'on grounds all of which should have been taken up at the time of the trial' and if denied by the Trial Judge appealed to the Supreme Court. Thereafter, by order dated December 2, 1964, the petition for the writ of habeas corpus was dismissed but the petitioner was granted thirty days from the date of such order to perfect an appeal to this Court from his conviction and sentence. The petitioner has asked this Court to review the order of the lower court and to determine whether such was erroneous.
Under the terms of Section 46-343 of the 1962 Code, it is unlawful for any person who is under the influence of intoxicating liquor to drive an automobile within this State. Section 46-345 of the Code fixes the punishment for the violation of the foregoing section for a fourth or any subsequent offense '[b]y a fine of not less than three thousand dollars or imprisonment for four years, or both.'
We have held that the Court of General Sessions was without jurisdiction of a prosecution for a first violation of Section 46-343 because of the punishment which is prescribed. Therefore, the allegation of the indictment that the crime charged was a second or subsequent offense was necessary to show the jurisdiction of the court. State v. Mitchell, 220 S.C. 433, 68 S.E.2d 350. In the cited case, the general rule taken from 42 C.J.S. Indictments and Informations § 145b(1)(a), page 1057, is stated as follows:
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State v. Scriven
...that the offense is second or subsequent is necessary to confer jurisdiction in General Sessions Court. See also Tyler v. State, 247 S.C. 34, 145 S.E.2d 434 (1965). In Mitchell, the defendant argued that the allegations concerning prior offenses should have been removed from the indictment ......
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Wilson v. Moore
...procedure[s] for the correction of errors of law of which the defendant had an opportunity to avail himself." Tyler v. State, 247 S.C. 34, 145 S.E.2d 434, 436 (1965). Thus, a prisoner may not disguise what is really a PCR application by calling it a habeas petition. See Simpson, 495 S.E.2d ......
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State v. Burdette
...be included in the indictment has been where the information is necessary to establish jurisdiction of the court. See Tyler v. State, 247 S.C. 34, 145 S.E.2d 434 (1965) ("[T]he allegation of the indictment that the crime charged was a second or subsequent offense was necessary to show the j......
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Scott v. South Carolina
...the correction of errors of law of which the defendant had an opportunity to avail himself.' " Id. at 277 (quoting Tyler v. State, 247 S.C. 34, 145 S.E.2d 434, 436 (S.C. 1965))(emphasis in the original). 5. The Court notes that "[t]he community supervision provision is clearly a collateral ......