13 S.C. 344 | S.C. | 1880
The opinion of the court was delivered by
These two cases, involving the same question, were heard and will be considered together. That question is, whether the Court of General Sessions has jurisdiction to estreat a recognizance given to secure the appearance before said court of a person charged with crime to answer to a bill of indictment to be preferred against him.
The grounds upon which jurisdiction is denied are, that the provisions of Sections 8 and 9 of Chapter CXLIL, (Gen. Stat. 750,) under which the proceedings in these cases were instituted, are practically identical with the proceeding by writ of scire facias, and that writ being abolished by Section 443 of the code of procedure, and the remedies previously obtainable in that form provided for by a civil action, the Court of General Sessions, which, under the constitution, has no civil jurisdiction, could not exercise the jurisdiction claimed for it in these cases. A sufficient answer to this is that the second part of the code, in which the provision abolishing the writ of scire facias is found, relates only to civil actions, and cannot, therefore, be construed so as to-apply to criminal action or to any proceedings in the court invested with jurisdiction of such actions. This provision must, therefore, be construed as applying to that writ only, as it had heretofore been used to obtain or enforce a civil right as contra-distinguished from a criminal proceeding. There is no doubt but that at the time of the adoption of the code the writ of scire facias could be used in the Court of Common Pleas as a civil remedy merely, for example, to revive a judgment, and the provision of the code unquestionably abolished it as a remedy in such and the like cases. But it is equally true that the writ could then be used in the Court of General Sessions, under the provisions of the act of 1787, (5 Stat. 13,) as a remedy for the enforcement of the performance of the condition of a recognizance given to secure the attendance before said court of persons charged with crime, or witnesses in such cases; and so the law
It is argued, however that the provisions of the general statutes under which the proceedings in these cases were instituted, are unconstitutional, because they purport, in violation of Section 1, Article IY. of the constitution, to confer civil jurisdiction upon, the Court of General Sessions, which, by that section, is invested “ with criminal jurisdiction only.” Such a construction of that clause of the constitution would so cripple the powers of the Court of General Sessions as greatly to impair, if not absolutely destroy, its usefulness, and it is not, therefore, admissible. The powers conferred by the sections of the general statutes in question, are not given for the purpose of investing the Court of General Sessions with any “ civil jurisdiction,” but solely for the purpose of enabling it to exercise the powers with which it is unquestionably clothed by the constitution. If the court, which is invested with the power to try and punish offenders against the law, had no means of enforcing the attendance of such persons, and of the witnesses necessary to testify against them, it would indeed be an empty farce to give it the power to try and punish; and certainly the proceedings prescribed by the sections under consideration have no other purpose but to enable the Court of General Sessions to carry into effect the powers with which it is undeniably vested, by securing and enforcing the attendance of parties and witnesses. Such a construction as that contended for would result in the denial to that court of the right to preserve order and enforce its mandates by the use of the proceedings in case of contempt.
The other ground taken in the argument — that the recognisances were not acknowledged in the presence of either a judge or a trial justice — is not properly before us, inasmuch as the-fact upon which it is based, though alleged in the argument of the appellant’s counsel, nowhere appears in the “ case ” as submitted,
The judgment of the Circuit Court is affirmed.