State v. Hopkins , 149 S.C. 494 ( 1929 )

I think that for two reasons the order refusing the defendant's motion for a new trial should be reversed:

1. The order was, in part at least, based upon an erroneous conception of the law. His Honor held, as stated in the opinion of the Chief Justice, "that J.B. Frazier, Jr., by signing the affidavit beyond the presence of the Magistrate, and having had it returned to the Magistrate with his signature thereon, ratified it, and ``to all intents and purposes it became a good and valid warrant, sufficient to authorize an arrest.'"

It is impossible to say how far this palpable error affected his ruling upon the issue of due diligence on the part of counsel for the defendant.

That the arrest warrant, based upon such an alleged affidavit, was absolutely void, is thoroughly established. 1 R. C.L., 764; 2 C.J., 337, 361; Green v. Rhodes,8 Ga. App., 301, 68 S.E., 1090; Carnes v. Carnes, 138 Ga. 1,74 S.E., 785; Redwine Bros. v. Jarrell, 14 Ga. App., 294,80 S.E., 728; Sullivan v. First Nat. Bank of Flatonia,37 Tex. Civ. App. 228, 83 S.W. 421; State v. Wimbush, 9 S.C. 309;State v. Higgins, 51 S.C. 51, 28 S.E., 15, 38 L.R.A., 561.

The right to resist arrest against a void warrant is sustained by numerous authorities in South Carolina, and among them may be cited State v. Bethune, 112 S.C. 104,99 S.E., 753; State v. Dupre, 134 S.C. 268, 131 S.E., 419; Statev. Wimbush, 9 S.C. 309; State v. Sims, 16 S.C. 486;Davis v. Sanders, 40 S.C. 507, 19 S.E., 138; State v.Higgins, 51 S.C. 51, 28 S.E., 15, 38 L.R.A., 561; Florencev. Berry, 61 S.C. 237, 39 S.E., 389; State v. Griffin,74 S.C. 412, 54 S.E., 603.

The deprivation of this unquestioned right of the defendant should not be adjudicated except upon the clearest grounds.

2. The circumstances I think were ample to justify defendant's counsel in assuming that the warrant was valid. It was so, upon its face. Counsel was familiar with the handwriting of the Magistrate and with that of the alleged affiant. He naturally assumed that Frazier, in the orderly course of events, appeared before the Magistrate, took the oath, and signed the affidavit. As a matter of law, he had the right to make that assumption under the principle that"omnia rite acta presumuntur."

I think that the case shows unmistakably that the defendant has been unjustly convicted and should have a new trial.