¶1
The opinion of the Court was delivered by
Mr. ChiEE Justice Stabeer.
¶2
This appeal is from an order of his Honor, Judge Oxner, refusing the appellant’s application for release from imprisonment by
habeas corpus.
The pertinent facts set out in the order are sufficient for an understanding of the matter, and need not be repeated here.
¶3
We have given much consideration to the questions raised by the exceptions; and arguments of counsel, with authorities cited, have been helpful to the Court in reaching a decision. We think that the conclusions of the Circuit Judge, for the reasons stated by him, are correct; and we deem it unnecessary to add, by way of further discussion of the questions involved, anything to what he has said. We approve his construction of Section 11 of Act 232, Acts of 1935; and, as pointed out in his decree, the remedy of the appellant for the correction of judicial errors, if any, made on his trial before Judge Mann, was by appeal. See
Ex parte Klugh ,
132 S. C., 199 , 128 S. E., 882
cited; Ex parte Boyle,
128 S. C., 535 , 123 S. E., 9
Ex parte Bess ,
152 S. C., 410 , 150 S. E., 54 65 A. L. R., 1459 .
¶4
The order appealed from, which will be reported, is affirmed.
Messrs. Justices Bonham, Baker and Fishburne concur.
Mr. Justice Carter did not participate on account of illness.
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Case posture Posture Before OXNER, J., Anderson, July, 1937. Affirmed.Proceeding by Howard Medlock for a writ of prohibition to J.B. Spearman, as Supervisor of Anderson County. From an order denying the petition, petitioner appeals.
Order of Judge Oxner follows:
Upon the verified petition of petitioner, his Honor, M.L. Bonham, Associate Justice, issued a writ of habeas corpus
returnable before me at Pickens, on June 15, 1937. A return was duly filed by respondent and the matter thereafter heard before me at the convenience of all parties, and taken under advisement.
Petitioner was tried in the Court of General Sessions of Anderson County at the February, 1937, term, upon an indictment charging him in the first count with unlawfully having in his possession alcoholic liquors which did not have
South Carolina revenue stamps affixed to the container thereof. It was further alleged in said indictment that such constituted a second offense, and that he had previously been convicted of such offense. No question is raised as to the sufficiency of the indictment. He was found guilty on the first count charging the foregoing offense, and was sentenced by his Honor, M.M. Mann, presiding Judge, to two years at hard labor upon the public works of Anderson County or in the State penitentiary. Petitioner was tried in his absence. Thereafter, he gave notice of intention to appeal to the Supreme Court, and failing to perfect the appeal as required by law, said appeal was dismissed by his Honor, G. B. Greene, presiding Judge, in an order filed May 11, 1937.
The offense for which the petitioner was tried and convicted is embraced in Section 11 of Act 232, of the Acts of 1935. In his petition it is contended by petitioner that the maximum term of imprisonment for a second offense under said section is thirty days, which time it is alleged the petitioner has completed and served.
The first question to be determined is the maximum sentence under the Section 11 upon conviction for a second offense. As above stated, it is contended by the petitioner that said maximum is thirty days, and by the solicitor that the minimum is thirty days and the maximum in the discretion of the Court. If the sentence imposed is in excess of the maximum allowed by law, under the case of Ex parte Klugh , 132 S.C. 199 , 128 S.E., 882 , 886 , petitioner would be entitled to be discharged on habeas corpus
after having served the maximum term which the Court had power to impose.
It is true, as contended by petitioner's counsel, that a criminal statute has to be strictly construed against the State and any doubt is to be resolved in favor of the defendant. But it seems clear to me that there is no ambiguity or doubt in the proper construction of Section 11. I do not see any reasonable construction that could be placed
upon said section other than it was the clear legislative intent that for a second offense that the minimum imprisonment should not be less than thirty days and the maximum left to the discretion of the trial Judge, subject to statutory limitations not necessary here to refer to.
Petitioner's counsel, in his written argument, frankly states: If these other sections providing for the different penalties were not in the Act, and Section 11 contained the only provision fixing punishment for its violation, it might be conceded that the Court could impose sentence for more that thirty days, and up to two years. As I gather petitioner's argument, he practically concedes that the foregoing is the proper construction of Section 11, standing alone, but takes the position that construing Section 11 along with the other sections providing punishment for other violations, there is ambiguity and doubt. This argument is predicated almost entirely upon the conception of petitioner's counsel as to the gravity of the various offenses set out in the Act. It is not within the power of this Court to determine whether a certain violation of the Act is more grave than another, or whether punishment for the violation of one section should be greater or less than that of another. That is entirely a matter for the Legislature.
The second and only remaining question raised by petitioner is that, while the indictment charges him with a second offense, on the trial of the case there was no proof of this being a second offense. At the hearing, in support of that contention, petitioner sought to introduce evidence of what he had been convicted of before. I then regarded it, and now regard such evidence, as incompetent. The indictment is clearly sufficient to charge the commission of the crime as a second offense, and it will be conclusively presumed that the evidence was sufficient to sustain the verdict of the jury upon said charge. The Court cannot in habeas corpus proceeding go into the sufficiency of the evidence. Such a question could only be raised by appeal.
In State v. Garlington , 56 S.C. 413 , 34 S.E., 689 , the Court said: It has been frequently held by the Supreme Court of the United States that a writ of habeas corpus cannot be used as a substitute for a writ of error. Accordingly this Court, following the same view, has held that, where a person has been imprisoned under the judgment of a Court of competent jurisdiction, he is not entitled to his discharge under a writ of habeas corpus , even though there be errors of law in the proceedings under which such judgment has been rendered, but can only obtain such relief in such a mode by showing that the Court rendering such judgment is without jurisdiction in the case.
In the case of Ex parte Klugh, supra , the Court said: Where the validity of a judgment or sentence is collaterally attacked in determining whether the error claimed to exist is jurisdictional or judicial, the test in respect thereto is this: Could the Court, under any circumstances of the particular case made by the pleadings, have properly reached the final result embodied in the judgment rendered or in the sentence imposed? If it could, then the alleged error manifestly is not jurisdictional, but judicial, reviewable only upon appeal.
We find the following in 29 Corpus Juris, page 46: The sufficiency of the evidence presented to sustain the charge upon the prisoner is held, even where there is a total absence of evidence, or the correctness of the Court's rulings in the admission or exclusion of evidence, cannot be reviewed on habeas corpus . Questions of fact cannot be retried.
The same principle is stated by the Supreme Court of the United States, in the Matter of Gregory , 219 U.S. 219 , 31 S.Ct., 143 , 55 L.Ed., 184 , as follows: Habeas corpus
proceeding cannot be made to perform the function of a writ or error, and we are not concerned with the question whether the information was sufficient, or whether the acts set forth in the agreed statement constituted a crime, that is to say, whether the Court properly applied the law, if it be found that the Court had jurisdiction to try the issues and to render
the judgment. * * * This rule has recently been applied in a case where it was contended in a habeas corpus
proceeding that the record should be examined to determine whether there was any testimony to support the accusation. And this Court, affirming the judgment which discharged the writ, said by Mr. Justice Day: `The contention is that, in the respects pointed out, the testimony wholly fails to support the charge. The attack is thus not upon the jurisdiction and authority of the Court to proceed to investigate and determine the truth of the charge, but upon the sufficiency of the evidence to show the guilt of the accused. This has never been held to be within the province of a writ of habeas corpus . Upon habeas corpus the Court examines only the power and authority of the Court to act, not the correctness of its conclusions.' Harlan v. McGouron , 218 U.S. 442 , 448 , 31 S.Ct., 44 , 47 [ 54 L.Ed., 1101 , 21 Ann. Cas., 849].
The foregoing are the only two questions raised before me, and, for the foregoing reasons, I think both are untenable.
It is therefore, ordered that the return be adjudged sufficient, and the petition for discharge and release be, and the same is hereby, denied. Source: CourtListener
