State v. Funderburk , 130 S.C. 352 ( 1925 )

January 13, 1925. The opinion of the Court was delivered by The case contains the following "statement":

"This appeal is from an order of Hon. E.C. Dennis, refusing to dismiss the appeal herein, and also from an order of Hon. R.W. Memminger, putting in the alternative the sentence imposed by the Magistrate on the defendant. On September 27, 1923, the defendant pleaded guilty in the Magistrate's Court to the charge of carrying concealed on his person an unlawful weapon, to wit, a .45-calibre pistol, in violation of the statute in such case made and provided, and was thereupon sentenced to serve a term of 30 days on the public works of Darlington County. The defendant having pleaded guilty, the Magistrate refused to fix an appeal bond, and such proceedings were thereafter had by way of habeas corpus as resulted in the allowance of an appeal bond. Judge Dennis overruled the State contention that having pleaded guilty, and the sentence being such as was allowed by law, the defendant could not appeal, holding that the right of appeal still existed, and ordering the Magistrate to make return and accept bail. The case came on for hearing before Judge Memminger, presiding Judge, at Darlington, in February, 1924, and without going into the facts or considering any papers used at other hearings, Judge Memminger held that the statute [Section 119, Code of Criminal Procedure; 1 Code of Laws of South Carolina, 1922, p. 411], empowering Magistrates to impose any sentence within the limits therein mentioned, singly or in the alternative, was unconstitutional, and, accordingly, modified the sentence by imposing imprisonment for a period of 30 days or a fine of $100.00. Due notice of intention to appeal was given from both the aforesaid orders and this appeal questions the correctness of said rulings on grounds appearing in the moving papers hereinafter set out."

In the argument for the State, the appellant, we find a statement of the questions raised and they will be stated and considered as made by the appellant.

I. Was personal service of the notice and grounds of appeal necessary? The right of appeal is guaranteed by the Constitution, Art. 5, § 23:

"In all cases tried by them, the right of appeal shall be secured under such rules and regulations as may be provided by law."

The respondent has, therefore, a constitutional right of appeal. On the civil side of the Court it is expressly provided that the notice of appeal may be served by mail. See Section 640. If the Legislature intended to restrict the right of appeal in criminal cases, it could have said so. This service by mail is sufficient, inasmuch as it was actually received within due time.

II. Was notice of intention to appeal the notice of appeal required by the statute? These terms are used in the statute to denote the same thing. In appeals from Magistrates' Courts it is called "notice of appeal"; in appeals to this Court, the term is "notice of intention to appeal."

III. Was respondent estopped by his plea of guilty to appeal? The appeal was from the sentence. The sentence comes after the plea of guilty. This point cannot be sustained.

IV. May a Magistrate impose sentence singly and not in the alternative? This raises a constitutional question that is not necessary to the determination of the case, and, therefore, should not be decided in this case.

It is provided in Code of Criminal Procedure, § 119:

(119) § 6. Appeal Heard Without Examination of Witnesses. — The said appeal shall be heard by the Court of General Sessions upon the grounds of exceptions made, and upon the papers hereinbefore required, and without the examination of witnesses in said Court. And the said Court may either confirm the sentence appealed from, reverse or modify the same, or grant a new trial, as to the said Court may seem meet and conformable to law."

The order of Judge Memminger was clearly a modification, and, therefore, clearly within his discretion. Could Judge Memminger, as a matter of law, declare the sentence imposed harsh and severe without considering the statements of the proceedings in the case extraneous to the Magistrate's record. His Honor had no right to consider these matters.

VI. Was the sentence imposed either harsh or severe? That was a matter for Judge Memminger. The judgment should be, and is, affirmed.

MESSRS. JUSTICES WATTS, COTHRAN and MARION concur.

MR. CHIEF JUSTICE GARY did not participate.