Batesburg v. Mitchell , 58 S.C. 564 ( 1900 )

September 17, 1900. The opinion of the Court was delivered by This is an appeal from the judgment of his Honor, Judge Ernest Gary, dismissing the appeal of the defendants from the sentence imposed upon them by the town council of Batesburg for violating one of the ordinances of said town. It seems to be conceded that the town council of Batesburg is invested by the charter of said town with all the powers and duties of a trial justice (now magistrate) in the trial of persons charged with a violation of any of the ordinances of said town; and hence their proceedings must be governed by the laws regulating the trial of persons charged with any violation of the criminal law by a trial justice or magistrate which are within the jurisdiction of such officers. In sec. 66 of 2 Rev. Stat., 281, it is provided that every person convicted before a trial justice of any offense and sentenced, may appeal from the sentence to the next term of the Court of General Sessions for the county; and in the succeeding sections down to and including sec. 71, the mode by which such appeal may be taken and prosecuted is prescribed. After providing in sec. 67 the time within which the notice of appeal must be served upon the trial justice, it is provided in sec. 68 that within ten days after such service the trial justice shall file in the office of the clerk of the Court a report or return of the proceedings before him, together with the notice of appeal; and then in sec. 69 it is provided as follows: "Upon service of said notice, the said trial justice shall, on demand of the defendant, admit him to bail in such reasonable sum, and with good sureties, as said trial justice may require, with conditions to appear at the court appealed to, and at any subsequent term to which the case may be continued, if not previously surrendered, and so from term to term until the final decree, sentence or order of the court thereon, and to abide such final sentence, order or decree, and not to depart without leave, and in the meantime to keep the peace and be of good behaviour." In pursuance of these provisions the town council of Batesburg (pro hac vice the trial justice or magistrate) duly made return to the Court of Sessions of its proceedings, in which, amongst other things, it appears that: "on the 18th day of April, A.D. 1898, both the defendants were arrested by S. Altman, a legal marshal of said town, duly sworn and empowered to act as such, that each of said defendants, L.M. Mitchell and J. Walter Mitchell, appeared at the usual place of judicature of said council, and at the time set for said trial, and after each of said defendants had made a statement * * * they departed from the place of trial after they had been duly notified that the trial would proceed." The return proceeds to show how the council was organized for trial — the regular intendant being related to the prosecutor, did not sit, and one of the wardens being related to the defendants, did not sit, and the case was tried by one of the wardens, elected by council as intendant protem., and the other two wardens. After hearing the testimony and mature consideration, both of the defendants were convicted, and each was sentenced to pay a fine of $25 or to work on the streets of Batesburg for a period of thirty days. It further appears in the return that the defendants were each notified in writing on the day of the trial, of their conviction and sentence: "that the defendants defied the town authorities, and refused to pay their said fines or work on the streets of said town, as required by the judgment of said council." "Thereupon the intendant pro tem. issued his warrant, requiring the said marshal to arrest the said defendants, and in case they refused to pay their fines, to lodge them in the guard house and compel them to work on said streets. Accordingly the defendant, J. Walter Mitchell, was arrested on the 21st of April, 1898, and upon paying his fine was released from custody; and on the same day the other defendant, L.M. Mitchell, paid his fine, without being arrested and without any objection." The notice and grounds of appeal to the Circuit Court, as set out in the "Case," were served on the 23d of April, 1898.

The judgment of the Circuit Court, together with the grounds of appeal therefrom; are set out in the record, and should be incorporated by the reporter in his report of the case, except the sixth, seventh and tenth grounds of appeal, which having been withdrawn at the hearing, need not be included.

The first, second and fourth grounds of appeal impute error to the Circuit Judge in holding that by the payment of the fines imposed upon the defendants, the case was at an end, and there was nothing left from which the defendants could appeal. In this there was no error. As we have seen, the statute provides how an appeal may be taken in a case like this; and makes special provision as to how a party convicted may avoid compliance with the sentence pending his appeal, and we are at a loss to perceive by what authority these defendants could substitute any other mode of obtaining that end than the mode specially provided by the statute. There can be no doubt that an appellate tribunal cannot, and will not, do such a nugatory act, as to hear an appeal from a sentence which has already been complied with; for that would be to decide a mere speculative question; and this, it has been frequently held, the Court will not do. Ex parte Pereira, 6 Rich., 149; State v. Gathers, 15 S.C. 370. See, also, Smith v. UnitedStates, 94 U.S. 97; Bonahan v. Nebraska, 125 U.S. 692. It is urged, however, that the fines here having been paid "under protest," takes this case out of the operation of the general rule. We do not think so. In the first place, there was nothing in the record which was before the Circuit Judge to show that these fines were paid "under protest;" but, on the contrary, the record shows the reverse; for in the return made to the Court of Sessions by the town council, it is expressly stated that one of the defendants paid his fine "without being arrested, and without objection," while in the case of the other defendant it is simply stated that upon his arrest the paid his fine and was released from custody. But as the Circuit Judge states, in his judgment, that the case was heard by him on "an agreed statement of facts" made orally, one of which was that the fines were paid under protest, we will waive this point and assume, for the purposes of this discussion, that the fines were in fact paid under protest. But in our judgment that fact does not alter the case. We know of no authority by which a person who has been convicted before a magistrate and sentenced to pay a fine, can obtain the advantages of an appeal and staying the sentence imposed upon him, by doing that which the law does not provide for, instead of that which the law does provide for. It is not for persons accused and convicted of criminal offenses to choose the modes which suits them best of staying the execution of sentences imposed upon them, pending appeal, but they must adopt the mode specially provided by law for that purpose. It seems to us, therefore, that even if these fines were paid under the most formal protest, it would not have the effect of staying the sentence pending the appeal, but must be regarded as a compliance with one of the alternatives provided for in the sentence, and as putting an end to the case. The case of Lexington v. Wise, 24 S.C. 163, cited by appellant's counsel, is not in point, for two reasons: 1st. The point here considered was not raised, considered or decided in that case. 2d. In that case the defendant, upon his trial before the town council, demanded a jury and also that the testimony of the witnesses be taken down in writing and subscribed by them. Both of these demands were refused, and defendant was convicted and sentenced to pay a fine of $5 or be confined in the guard house for eight days. He gave notice of appeal, and tendered the bond required by statute, which was refused — the town council holding that he had no right of appeal. He then paid his fine under protest. The Circuit Judge held that he had a right of appeal, that he was entitled to a trial by jury, if demanded, and that the testimony of the witnesses should be taken down in writing and subscribed by them, as the law required. This Court affirmed these rulings of the Circuit Judge; but there was not a word said in regard to the effect of the payment of the fine under protest, as no question in regard to that was either raised or decided. The first, second and fourth grounds of appeal are overruled.

The third ground manifestly cannot be sustained. The fact there objected to is expressly stated in the judgment of the Circuit Judge, as one of the agreed facts upon which he heard the case. Besides, that fact sufficiently appears in other portions of the record.

The fifth ground is clearly too general to be considered.

The first error imputed to the Circuit Judge in the eighth ground of appeal — the failure to issue a warrant and have the same served upon the defendants — is disposed of by the statement in the return of the town council, that the defendants were arrested and appeared at the trial; and if they chose voluntarily to leave before the trial was concluded, that was their own fault, of which they cannot take advantage. The second error imputed in this ground is based entirely upon facts which do not appear in the "Case," and only appears in this exception, and, therefore, cannot be noticed.

The ninth ground is disposed of by what has been said in considering the eighth ground; for the "Case" shows that the defendants were present at the trial, and if they left before the trial was concluded, it was their own fault, of which they cannot take advantage.

The eleventh ground of appeal is not supported by the testimony in the case, and is flatly contradicted by the finding of the town council that the offense with which defendants were charged was committed "within the town."

The twelfth ground is based upon a mere quibble upon the words used in the sentence, which could scarcely avail defendants even in the higher jurisdiction, where much greater strictness is required than in the proceedings before a magistrate's court. Besides, the record before us leaves no doubt as to what the sentence really was.

The judgment of this Court is, that the judgment of the Circuit Court be affirmed.