35 S.C. 160 | S.C. | 1892
The opinion of the court was delivered by
The following facts may be gathered from the somewhat meagre .statement found in the ‘'Case” as prepared for argument here, although it is quite obvious that the facts are not as fully stated as they should have been in justice to the court. At October term, 1890, of the Court of General Sessions for Berkeley County, a true bill was found against appellant upon an indictment for arson, when the case
“It appearing to the court that the above named defendant was committed to the jail of Berkeley County on the 29th day of May, 1890, on a charge of arson, and a true.bill having been found against him, and the State having continued the trial of said indictment at the October term of this court, 1890, and also at February term, 1891, thereof, and it also appearing that said defendant has not been able to procure bail for his release, and a petition that he be tried on said indictment at this term having been duly filed in this court during the first week of this term, and on the last day of the term a motion for his discharge, under section 2328, of the General Statutes, having been duly made by defendant’s counsel, Claudian B. Northrop, whereupon it was stated by the solicitor that said defendant was out of the jurisdiction of the court, and his name not appearing in the list of the prisoners furnished by the sheriff as being in his custody. It is ordered, that it be referred to II. K. Jenkins, Esq., to inquire whether or not said defendant is out of the jurisdiction of this court, and pending said inquiry, said motion is refused. On such inquiry the testimony of the sheriff may be received orally, as w.ell as that of other witnesses, to prove the whereabouts at this time of the defendant.”
From this order the defendant, by his counsel, appealed upon the several grounds set out in the record, and .the solicitor gave notice that he would ask this court to sustain the refusal of the defendant's motion upon grounds other than those relied upon by the Circuit Judge, which are likewise set out in the record. We do not deem it necessary to set out specifically the grounds relied upon either by the State or by the appellant, as the sole question which really arises upon the record is whether, upon the
The motion is based upon section 2323, of the General Statutes, which reads as follows: “If any person committed for treason or felony, plainly and specifically expressed in the warrant of commitment, upon his prayer or petition in open court the first week of the term to be brought to his trial, shall not be indicted some time in the next term after such commitment, it shall and may be lawful to and for the judge of the Circuit Court, and he is hereby required, upon motion made in open court the last day of the term, either by the prisoner, or any one in his behalf, to set at liberty the prisoner upon bail, unless it appear to him, upon oath made, that the witnesses for the State could not be produced the same term ; and if any person committed as aforesaid, upon his prayer or petition in open court, the first week of the term, to be brought to. his trial, shall not be indicted and tried the second term after his commitment, or upon his trial shall be acquitted, he shall be discharged from his imprisonment.” It is very obvious that the provisions of this section of the General Statutes are taken from and are substantially the same as those found in the 7th section of the habeas corpus act (1 Statutes at Large, 119-20), and, therefore, the construction which has heretofore been given to that section of the habeas corpus act is equally applicable to the section of the General Statutes upon which appellant bases his motion.
,If he was not actually or constructively imprisoned, he was not in any view entitled to the .benefit of the provisions of the section relied upon, for that only confers a right of discharge “from his imprisonment” ; and he certainly was not entitled to a discharge from further prosecution, for two reasons: 1st. Because the section does not purport to confer such a right; and, 2nd, because it has been expressly held in State v. Fley & Rochelle (2 Brev., 348), that the statute cannot be so construed. At all events, it was not incumbent upon the State to show that the defendant was not in confinement at the time he made his application for discharge, but it was his duty, in order to avail himself of the benefit of the statutory provision, upon which he relied, to show that he was in the situation of a person for whose benefit the provision was intended, and, therefore, to say the very least of it, he was bound to show that he was either actually or constructively imprisoned, and this he wholly failed to do. The fact that he had been committed to jail in May, 1890, and had been unable to procure bail, certainly was altogether insufficient to show that he was imprisoned in February, 1891, when it appeared that he could not be found in the court room when his case was called for trial, that he failed to respond to the call of the
Under the view which we have taken of the case, the question whether the defendant was out of the jurisdiction of the court at the time the motion for his discharge was made becomes wholly immaterial, and therefore what the solicitor may have stated to the court, and what weight should be attributed to it, as well as the mode of proceeding directed by the Circuit Judge to determine a wholly immaterial question, become wholly unimportant, and need not, therefore, be considered. The only question material to the inquiry whether defendant was entitled to his motion for a discharge, was whether he had shown that he occupied the position of one who would be entitled to the relief asked for; and this, as we have seen, he utterly failed to do, and hence his motion was properly refused.
The judgment of this court is, that the order appealed from, in so far as it refused defendant’s motion for a discharge be. affirmed, but in so far as it ordered a reference to inquire into a wholly immaterial fact, that it be reversed.