State v. Mason , 118 S.C. 171 ( 1921 )

December 13, 1921. The opinion of the Court was delivered by The defendant was indicted under Section 544 of the Criminal Code, which is as follows:

"It shall be the duty of every Sheriff, Judge of Probate, Clerk of the Court of Common Pleas, County Treasurer, and any other State or County officer intrusted with funds by virtue of his office, upon retiring from office, to turn over to his successor all moneys received by him as such officer, and remaining in his hands as such officer, within thirty days from the time when his successor shall have entered upon the duties of his office, in the same manner as he is required by law to turn over the furniture, books and papers; and the successor shall receive and be responsible for the moneys so turned over to him, in the same manner as he is liable for other moneys received by him officially; and any public officer neglecting or refusing obedience to the requisition herein contained shall be held guilty of a misdemeanor, and, upon conviction, shall be liable to a fine of one thousand dollars and imprisonment not exceeding twelve months, besides his liability on his official bond, at the suit of any person aggrieved by such neglect. * * *"

The charge was that, as County Treasurer of Hampton County, he failed to turn over to his successor in office money received by him and remaining in his hands as such officer.

The jury returned a verdict of guilty, and he appealed from the sentence imposed on him.

The exceptions are so numerous and raise so many questions that, in order to understand them clearly, it will be necessary to incorporate the testimony, the charge, and the exceptions, in the report of the case.

In considering the exceptions, it will not be necessary to follow the classification adopted by the appellant's attorneys.

EXCEPTION 1 In order to ascertain whether there was error on the part of his Honor, the presiding Judge, in charging upon the facts, in violation of Section 26, Art. 5, of the Constitution, which provides that "Judges shall not charge juries in respect to matters of fact, but shall declare the law," it will be necessary to determine whether the defendant was holding the office of County Treasurer at the time he is alleged to have violated the provisions of Section 544,supra. Section 440 of the Code of Laws, 1912, provides that —

"The Governor is authorized by, and with the advice and consent of the Senate, to appoint for each County in the State a County Treasurer, who shall hold office for two years and until his successor is appointed and qualified. * * *"

Section 11, Art. 1, of the Constitution, contains the provisions:

"No person shall be elected or appointed to office in this State for life or during good behavior, but the terms of all officers shall be for some specified period, except Notaries Public and officers in the militia."

This provision was construed in the case of State v.Bowden, 92 S.C. 393, 75 S.E., 866, by the Court en banc, and the principles therein announced, when applied to the admitted facts in the present case, unquestionably show that the defendant was the duly appointed and qualified Treasurer of Hampton County, at the time he received the money in question, and when his successor was appointed and qualified.

Under the admitted facts herein, the errors assigned by this exception were not prejudicial.

EXCEPTION 18 The charge is incorrectly quoted in this exception; and the language used by his Honor, the presiding Judge, is free from error.

After careful consideration, we have not been able to find any prejudicial error in the other exceptions.

Affirmed.