State v. CollinsState v. Collins
- Reporters:
- , ,
- Before:
- Cothran
The opinion of the Court was delivered by
Mr. Justice Cothran.Thе appellants were convicted in the Court of General Sessions at Orangeburg, September, 1922, of arson. The verdict carried a recommendation to the mercy of thе Court, and the defendants weré sentenced to imprisonment for 15 years each.
The, appeal raises but two questions:
1. Was there error in allowing the jury to view and examine thе premises where the arson was alleged to have been committed in the. absence of the defendants and the presiding judge?
2. Was there error in imposing the sentence of 15 years’ imprisonment ?
As to the first question: This question is so fully and ably discussed by the present Chief Justice in thе case of State v. Suber, 89 S. C., 100; 71 S. E., 466, that it is only necessary to rеfer to that case to show that this ground of appeal is without merit.
*269 As to the second quеstion: Section 174 of the Criminal Code of 1912 prоvides that, where the verdict of guilty under an indictmеnt for arson is accompanied by a rеcommendation to the mercy of the Cоurt, the punishment shall be imprisonment for a term not less than 10 years. This Section was amended by the Act of 1915 (29 Stat. 193), providing that the punishment under these circumstances shall be “imprisonment in the county jail or at hard labor in the penitentiаry or on the public highways in the discretion of the Court.”
The amendment appears to hаve been overlooked by the presiding judgе and by the attorneys engaged in the case; the presiding judge acting upon the section as it formerly stood, expressly limiting the exercise of his discretion, as he announced:
“Yоu have it in your power to recommend thеm to the mercy of the Court, and then the Court hаs it in his discretion to impose a sentence, but not less than ten years.”
The effect of thе amendment of 1915 is to- place the matter of punishment under the regulations of Sectiоn 103 of the. Criminal Code, in the discretion of the Court, for a period not less than three months nоr more than ten years. The sentence being illegal and the conviction subject to no legal objection, the conviction mаy be sustained, and the case remanded fоr a legal sentence. State v. Baker, 58 S. C., 111; 36 S. E., 501. State v. Durham, 89 S. C., 134; 71 S. E., 847. State v. Goins (S. C.), 115 S. E., 232.
The judgment of this Court is that the judgment of the Circuit Court be affirmed, and that the case be remanded to that Court for the purpose of resentencing the defendants in. accordance with the requirements of law.