40 S.C. 373 | S.C. | 1893
The opinion of the court was delivered by
In this case the defendant was carried before a judicial trial justice in and for the city of Charleston, charged with the offence of carrying a deadly weapon concealed upon his person. No jury having been demanded, the case was heard by the justice, without a jury, and the defendant having been found guilty, he was sentenced to pay a fine of twenty-five dollars, or to be imprisoned in the county jail, and made to perform hard labor on the public works of the city of Charleston, in the chain gang, for the period of
That appeal came on to be heard before his honor, Judge Izlar, who rendered judgment sustaining both of the grounds of appeal, and ordering the clerk to docket the case for trial at the next term of the Court of General Sessions. From this judgment the solicitor, in behalf of the State, appeals, upon the several grounds set out in the record, which make substantially but two questions: 1st. Whether the Circuit Judge erred in holding that the defendant was entitled to a trial by a jury composed of twelve men. 2d. Whether he erred in holding that so much of the sentence imposed by the judicial trial justice, as required the defendant to perform hard labor on the public works of the city of Charleston, in the chain gang, for the period of thirty days, was null and void, as without the authority of law.
It is conceded that, so far as the questions raised by this appeal are concerned, the same law which applies to an ordinary trial justice applies also to a judicial trial justice in the city of Charleston, and, therefore, the case may be considered as though it had arisen in the court of an ordinary trial justice.
In determining, therefore, what the several constitutional provisions referred to mean, and keeping in mind the fact that the present Constitution is not the beginning of law for the State, but that it assumes the existence of a well understood system, still to remain in force, except in so far as it is altered by the provisions of the Constitution of 1868, it is but natural to inquire what was the system previously in existence, so far as the right of trial by jury is concerned, and whether any alterations therein have been made by the provisions of the present Constitution. The fundamental law which was in existence at the time of the adoption of the Constitution of 1868, was the Constitution of 1865, which in section 7 of article IX., after declaring that “the trial by jury, as heretofore used in this State, and the liberty of the press, shall be forever inviolably preserved,” expressly declared that “the General Assembly shall have power to determine the number of persons who shall constitute the jury in the Inferior and District Courts.” And in pursuance of this provision the General Assembly did, by the several acts of 1865 and 1866, provide for juries in the District Courts consisting of less than twelve persons, which, in the case of State v. Starling, 15 Rich., 120, were held to be legal
It is true, that in Starling’s case the decision was based upon the express provision of the Constitution of 1865, above quoted, which is not found in the Constitution of 1868, and the case cannot be regarded as authority upon the question now under consideration, yet it is referred to as containing a comprehensive review of the legislation of this State under the Constitution of 1790, which contained a provision that “the trial by jury, as heretofore used in this State, and the liberty of the press, shall be forever inviolably preserved,” as well as of the decisions of our courts upon that subject. From these decisions Wardlaw, J., draws, amongst others, the following inferences: “Second, that whenever a proceeding was found to have been sanctioned by law that existed at the adoption of the Constitution of 1790, it was allowed to prevail, however invasive of jury trial it may have been. Third, that proceedings without jury existing before 1790, served to authorize analogous proceedings subsequently directed; for instance, a justice of the peace had a certain summary jurisdiction; therefore, the same could be given to the recorder of Charleston,” &c.
Inasmuch, therefore, as the law as it stood at the time of the adoption of the Constitution of 1868, plainly recognized the right of the General Assembly to determine the number of persons who shall constitute the jury, not only in the District Courts but also in the Inferior Courts, it is clear, upon the principles above stated, that a trial by a jury of less than twelve, should still be recognized in the Inferior Courts, “however invasive of jury trial” it may seem to be, unless there is some provision in the present Constitution which forbids the General Assembly from exercising a right previously conferred and actually exercised under the law as it existed at the time of the adoption of the Constitution of 1868. We do not find anything in the present Constitution which forbids the General Assembly, in express terms, from exercising the right to deter
well as by reference to our own cases. In Gregier v. Bunton, 2 Strob., at page 495, Judge Evans, in speaking of this same subject — the constitutional guaranty of the right of trial by jury — uses this language: “When, therefore, we find that an interpretation has been put upon this clause by those who lived at the same time, and probably by many of those who were members of the convention, and that this construction has never been called in question for a long time, more than half a century in this case, it is a very strong argument in favor of its correctness, and may be, and ought to be, adopted, unless it is palpably wrong.” The same doctrine may be found more elaborately set forth in Simpson v. Willard, 14 S. C., 191. Looking, then, to this source for light upon the question now under consideration, we find that the very first legislature which assembled after the adoption of the present Constitution, which, as matter of history, it is known, was composed in large part of the same persons who sat in the convention which framed the Constitution, passed “An act to provide for the temporary appointment of magistrates, and to define their powers and duties” (act of 24th September, 1868, 14 Stat., 99), in which provision is made for a jury composed of only six persons. Again, by the act of March 1st, 1870,14 Stat., 403, trial justices were invested with “jurisdiction of all offences which maybe subject to the penal
This may be regarded as an authoritative interpretation of the proper signification of the term “imprisonment,” as used in the Constitution. Accordingly it was held in that case that a person convicted of a misdemeanor — assault with intent to kill — could not be sentenced to confinement in the State penitentiary at hard labor, unless such punishment had been prescribed by some statute substituting that mode of imprisonment in place of the one which had always existed in the State. In view of that decision, doubtless, the General Assembly passed the act of 1878, now incorporated as section 2615 of the General Statutes, declaring that: “In every casein which imprisonment is provided as the punishment, in whole or in part, for any crime, such imprisonment shall be either in the penitentiary, with or without hard labor, or in the county jail, with or without hard labor, at the discretion of the Circuit Judge pronouncing the sentence.” But this provision, by its terms, applies only to the Court of Sessions — a court of general jurisdiction — -and
So that we think it clear that the act of 1885, 19 Stat., 125, as amended by the act of 20 December, 1892 (21 Stat., 22), under which the power is claimed to add to the sentence of imprisonment the requirement of hard labor on the public works of a city or county, in so far as it purports to confer upon a trial justice the power to add to a sentence of imprisonment the requirement of such hard labor, must be regarded as unconstitutional and void. It is very manifest that this additional imposition exceeds the limits prescribed by the Constitution in defining the jurisdiction of a justice of the peace, “or other officer authorized by law,” and hence the trial justice, in imposing this additional punishment upon the defendant, acted without the authority of the law, and hence so much of the sentence as exceeded the prescribed limits must be regarded as null and void.
The judgment of this court is, that so much of the judgment of the Circuit Judge as adjudged that the defendant was entitled to a trial by twelve men, be reversed ; but that so much of said judgment as adjudged that so much of the sentence imposed by the judicial trial justice as required the defendant “to perform hard labor on the public works of the city of Charleston, in the chain gang,” was null and void, be affirmed ; and that the case be remanded to the Court of Sessions for the County of Charleston, with instructions to confirm the sentence as herein modified.
I find no difficulty in reaching the conclusion of the other members of the court on the first ground of appeal, but I regret my inability to concur in the views announced on the second ground of appeal. It seems to me that the word imprisonment should be so construed as to include the employment of the persou convicted during his imprisonment. It is nowhere, in the sentence pronounced by the judicial trial
Judgment modified.