140 S.E. 232 | S.C. | 1927
Lead Opinion
November 15, 1927. The opinion of the Court was delivered by This is an appeal from an order of Judge H.F. Rice reversing an order of M.J. Moore, magistrate of Sumter County, in which order the magistrate refused the demand of the defendant, George H. Lackey, for a trial on the charge of drawing and uttering two checks on the Bank of Paxville, Paxville, S.C. without sufficient funds to meet payment.
The agreed statement of facts contained in the transcript of record is as follows:
"The defendant, George H. Lackey, was lodged in jail in Sumter, on two warrants issued by Magistrate M.J. Moore, on the affidavit of H.P. Love, on the 4th day of January, 1926, charging that on October 21, 1925, and on October *67 22, 1925, the defendant drew and uttered his two checks on the Bank of Paxville, Paxville, S.C. respectively, for $12.39, and for $1.76, and that the said defendant had not sufficient funds to meet or cause payment on said checks when presented, and the defendant failed to pay the amount of the same within seven days after written notice of failure of the said bank to make payment. That the defendant, Lackey, was arrested and lodged in jail on the two warrants referred to, and subsequent thereto, the defendant, Lackey, while in jail, it is contended by the state, inquired of the magistrate if he would discontinue the case and set him at liberty if the defendant, Lackey, would pay the face of the checks and costs. On the same date that he was incarcerated, the defendant, Lackey, paid over to the jailer, Owens, of Sumter, the face of the checks, plus the costs incurred, the defendant, Lackey, contending that such payment by him was in lieu of bond and not in settlement of the criminal charges against him.
"That on the 11th day of May, 1926, the defendant demanded trial of the two cases, and the magistrate stated that while he was of the opinion that the cases had been dismissed, that he would hear arguments. After arguments, the magistrate concluded that the cases had been settled and finally determined; that he was entirely without jurisdiction to reopen the charges against the defendant, and, further, that if he had the power, then in his discretion, he refused the same, as the cases had been disposed of in accordance with the previous request and agreement of the defendant, and that there was no one representing the state demanding trial. The demand for consideration of the cases was accordingly refused, and the magistrate issued his order May 17, 1926, refusing the same, from which the defendant appealed to the Circuit Court."
The transcript of record also contains several affidavits, including an affidavit by the defendant, George H. Lackey, *68 as to the facts in the case, and which affidavits were before the magistrate when the hearing was had before him.
His Honor, Judge Rice, before whom the appeal was heard, reversed the order of the magistrate, and remanded the case to the Court of Magistrate M.J. Moore for trial. From this order of Judge Rice, the state has appealed to this Court, asking a reversal of the order of Judge Rice upon the grounds stated in the exceptions, which, together with the order of the magistrate and the order of Judge Rice, will be reported.
Since, under the view we take of the case, the defendant is entitled to a trial on the charges alleged in the warrants under which he was arrested, we deem it proper not to enter into a discussion of the facts in the case. For the reasons assigned by his Honor, Judge H.F. Rice, it is the order of this Court that the order of Judge Rice is hereby affirmed and made the judgment of this Court, and the case remanded for trial in the magistrate's Court, as directed by Judge Rice.
MR. CHIEF JUSTICE WATTS and MESSRS. JUSTICES COTHRAN, BLEASE and STABLER concur.
Addendum
I concur in the opinion affirming the order of Judge Rice, upon the following grounds:
The Act of 1923 (33 Stat., 120) is quite different from Section 60 of the Criminal Code, which it supersedes. Under Section 60 the prosecution is directed to be discontinued upon the payment of the amount of the check with all costs; there is no such provision in the Act of 1923. Assuming that the defendant paid the amount of the two checks and all costs in attempted settlement of the charges against him, he did no more than he was legally obligated to do, which did not have the effect of discontinuing the prosecution. The prosecutor still had the right to proceed with the trial of the case, and, if so, the defendant had the right to insist upon a trial.
MESSRS. JUSTICE BLEASE and STABLER concur. *69