STATE v. FUNDERBURK

Citation Codes

Equivalent Citations

citation codes

Docket Number

19480

Attorney(S)

Edward M. Leppard, of Leppard Leppard, Chesterfield, for Appellant, cites: As to the provisions of Section 43-232 of the Code of Laws of South Carolina, 1962, precluding and/or delaying the acquisition of jurisdiction by a Court of General Sessions until after a properly demanded preliminary hearing has been held: "Preliminary Hearing" Statute, Act No. 433 of the Acts and Joint Resolutions of the General Assembly of the State of South Carolina of 1898 (22 Volume of Stat. at Large 698); Criminal Code, 1902, Section 24, Criminal Code, 1912, Sec. 33 and Code of Criminal Procedure, 1922, Sec. 32, amended by Act No. 788 of the 1930 Acts and Joint Resolutions of the General Assembly of the State of South Carolina; Section 936 of the 1932 Code Section 935 of 1942 Code and Section 43-232 of 1952 Codes; 62 S.C. 374, 40 S.E. 776; Section 43-232 of 1962 Code; 79 S.C. 542, 60 S.E. 442; 43 S.C. 108, 20 S.E. 1010; 54 S.C. 313, 32 S.E. 424; 62 S.C. 374, 40 S.E. 776; 166 S.C. 430, 164 S.E. 912; 178 S.C. 89, 182 S.E. 311; Section 18 of Article 5 of S.C. Constitution (1895); 194 S.C. 234, 9 S.E.2d 730; 213 S.C. 60, 48 S.E.2d 595; 245 S.C. 385, 140 S.E.2d 784; Section 43-232 (Code 1962); 251 S.C. 431, 163 S.E.2d 220 ( 296 F. Supp. 563); 166 S.C. 430, 164 S.E. 912; 172 S.C. 129, 173 S.E. 77; 239 S.C. 535, 123 S.E.2d 867; 243 S.C. 238, 133 S.E.2d 320; 245 S.C. 385, 140 S.E.2d 784; Article 1, Section 17 of S.C. Constitution. As to the Trial Judge's at the third trial of this case erring in denying the Appellant's motions to quash and/or dismiss the indictment: 118 S.C. 383, 110 S.E. 525; 79 S.C. 174, 60 S.E. 448; 189 S.C. 444, 1 S.E.2d 626; 51 S.C. 284, 28 S.E. 937; 13 S.C. 439; 20 S.C. 392; 54 S.C. 240, 32 S.E. 357; 56 S.C. 540, 35 S.E. 214; 79 S.C. 174, 60 S.E. 448; 158 S.C. 471, 155 S.E. 849; 219 S.C. 136, 64 S.E.2d 250; 53 S.E. 538, 73 S.C. 435; 19 S.C. 218. As to admissibility of school record: 223 S.C. 377, 76 S.E.2d 151. As to the Trial Judge's erring during the course of the trial by making comments which tended to indicate his opinion as to the weight or sufficiency of the evidence, the credibility of the witnesses, the guilt of the accused, and the controverted facts of the trial: Section 26, Article 5 of our Constitution; 187 S.C. 58, 196 S.E. 371; Article 5, Section 26 of South Carolina Constitution of 1895; 209 S.C. 531, 41 S.E.2d 217; 235 S.C. 395, 111 S.E.2d 669. As to the Trial Judge's erring in charging the jury principles of law which were not applicable to the case as made by the indictment and the evidence: 87 S.C. 522, 70 S.E. 306; 186 S.C. 221, 196 S.E. 6; 208 S.C. 462, 38 S.E.2d 492; 246 S.C. 144, 142 S.E.2d 864. As to the Trial Judge's improperly coercing the jury to find a verdict: 106 S.C. 150, 90 S.E. 596; 126 S.C. 437, 120 S.E. 230; Section 582, Code Civ. Prac. 1922; 216 S.C. 552, 59 S.E.2d 155. Messrs. Daniel R. McLeod, Atty. Gen., Joseph C. Coleman, Deputy Atty. Gen., of Columbia, and Marion H. Kinon, Sol., of Dillon, for Respondent, cite: As to the Defendant's failing to comply with the terms of Section 43-232 of the Code of Laws of South Carolina by timely demanding a preliminary hearing: 166 S.C. 430, 164 S.E. 912; 251 S.C. 431, 163 S.E.2d 220; 178 S.C. 89, 182 S.E. 311; 166 S.C. 430, 164 S.E. 912; 145 Conn. 136, 139 A.2d 601; 26 Conn. Sup. 435, 226 A.2d 665; 51 F. Supp. 462; 178 S.C. 89, 182 S.E. 311; 251 S.C. 431, 163 S.E.2d 220; 243 S.C. 238, 133 S.E.2d 320. As to the doctrine of res judicata applying to motions to quash and/or dismiss the indictment made and denied at both prior trials: 13 S.C. 285; 193 S.C. 225, 8 S.E.2d 326; 190 S.C. 414, 3 S.E.2d 207. As to the Court's properly allowing the high school principal to testify from the records and to admit the records into evidence concerning attendance: 223 S.C. 377, 76 S.E.2d 151.

Judges

BUSSEY, Justice:

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Smart Summary

Factual and Procedural Background

The defendant, Funderburk, was arrested on May 4, 1970, on warrants charging grand larceny and receiving stolen goods. He was released on bail and retained counsel on May 8, who filed a written demand for a preliminary hearing with the magistrate. The preliminary hearing was not held until October 2, 1970. Meanwhile, the Court of General Sessions convened on May 18, 1970, and an indictment based on the warrants was returned by the grand jury that day. The defendant was tried on the indictment starting October 12, 1970, resulting in a mistrial.

The defendant moved to quash or dismiss the indictment, arguing that under South Carolina Code Section 43-232, the Court of General Sessions and grand jury lacked jurisdiction at the time of indictment because the preliminary hearing had not yet been held. Judge Baker denied this motion, ruling that the court had jurisdiction at the time of trial despite the indictment being returned before the preliminary hearing.

The case was retried on February 1, 1971, before Judge Weatherford, resulting in another mistrial. The defendant renewed the motion to quash, which was again denied on the grounds of res judicata due to the prior ruling by Judge Baker. The case was tried a third time at the May 1971 term before Judge Spruill, who also denied the motion to quash citing the law of the case doctrine. This trial resulted in the defendant’s conviction for grand larceny.

Legal Issues Presented

Whether the Court of General Sessions and the grand jury had jurisdiction to indict the defendant prior to the holding of a preliminary hearing as required by Section 43-232 of the South Carolina Code.
Whether the indictment returned before the preliminary hearing was valid or a nullity.
Whether prior rulings denying motions to quash the indictment were binding under doctrines such as res judicata or law of the case.
Whether the defendant’s failure to timely appeal earlier rulings affected the jurisdictional question.
Whether the defendant’s conviction violated constitutional protections due to jurisdictional defects in the indictment.

Arguments of the Parties

Appellant's Arguments

The defendant contended that under Section 43-232 of the South Carolina Code, the Court of General Sessions and the grand jury lacked jurisdiction at the time of indictment because a preliminary hearing had not been held following a timely demand.
The indictment was therefore void, and the trial court erred in denying motions to quash or dismiss the indictment.
The defendant argued that jurisdiction is a fundamental requirement and cannot be waived or cured by subsequent proceedings.
The motions to quash were improperly denied despite the statutory and constitutional mandates.

Respondent's Arguments

The State argued that the defendant failed to comply with the terms of Section 43-232 by not timely demanding a preliminary hearing, thus the court had jurisdiction.
The State contended that prior rulings denying motions to quash were res judicata and binding on subsequent trials.
The State maintained the court properly allowed evidence and testimony, including school records, and that procedural issues had been resolved in prior trials.
The State raised for the first time an argument that the demand for a preliminary hearing was not timely because the statute requires ten clear days excluding the day of service and the convening day of court.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
State v. Flintroy, 178 S.C. 89, 182 S.E. 311	Interpretation of Section 43-232 regarding preliminary hearings and jurisdiction.	Supported the conclusion that the Court of General Sessions lacked jurisdiction before the preliminary hearing.
State v. Adcock, 194 S.C. 234, 9 S.E.2d 730	Jurisdictional requirements for indictment and preliminary hearings under South Carolina law.	Reinforced that the indictment was void without a timely preliminary hearing.
State v. Nesmith, 213 S.C. 60, 48 S.E.2d 595	Jurisdiction of courts and grand juries in criminal proceedings.	Confirmed that jurisdiction is fundamental and must exist at the time of indictment.
Blandshaw v. State, 245 S.C. 385, 140 S.E.2d 784	Effect of lack of jurisdiction on criminal indictments.	Supported the holding that acts of a court without jurisdiction are void.
State v. Sanders, 251 S.C. 431, 163 S.E.2d 220	Jurisdictional prerequisites for prosecution and indictment validity.	Applied to affirm that the indictment was a nullity without a proper preliminary hearing.
State v. Castleman, 219 S.C. 136, 64 S.E.2d 250	Ability to raise lack of jurisdiction at any stage, including on appeal.	Used to reject the State’s argument that failure to appeal earlier rulings barred jurisdictional challenge.
State v. Adams, 73 S.C. 435, 53 S.E. 538	Jurisdictional challenges can be raised for the first time on appeal.	Supported the court’s acceptance of jurisdictional defect raised for the first time on appeal.
Additional cited precedents	Various principles on preliminary hearings, jurisdiction, admissibility of evidence, jury instructions, and trial conduct.	Referenced in briefs but not directly analyzed in the court’s reasoning.

Court's Reasoning and Analysis

The court analyzed Section 43-232 of the South Carolina Code, which requires a defendant to demand a preliminary hearing at least ten days before the next term of the Court of General Sessions. The statute mandates that the court of general sessions cannot acquire jurisdiction until after such a preliminary hearing has been held. In this case, the defendant’s counsel filed a timely written demand for a preliminary hearing, but the hearing was held only after the indictment was returned by the grand jury. The court found that under the statute’s literal terms, the Court of General Sessions lacked jurisdiction at the time of indictment.

The court emphasized the fundamental principle that acts of a court taken without jurisdiction are void. Jurisdictional defects can be raised at any time, including on appeal, and the defendant’s failure to appeal prior rulings did not waive this challenge. The State’s argument that the demand for a preliminary hearing was not timely, based on counting "ten clear days," was not raised below and thus was not considered.

Consequently, the indictment was declared a nullity, and the defendant’s conviction was found to violate constitutional provisions protecting against prosecution without jurisdiction. Because the conviction was based on an invalid indictment, it was vacated. The court found it unnecessary to address other issues raised, as they would not arise again if the defendant were tried on a valid indictment.

Holding and Implications

The court REVERSED the defendant’s conviction and VACATED the indictment and judgment of conviction.

The direct effect of this decision is that the defendant’s conviction for grand larceny is nullified due to lack of jurisdiction at the time of indictment. The case must be retried only upon a valid indictment issued after a properly held preliminary hearing as mandated by Section 43-232. The court did not establish new precedent beyond reaffirming existing jurisdictional principles and statutory interpretation. No broader constitutional or procedural implications were discussed beyond the immediate case.

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The STATE, Respondent, v. Hurley Alfred FUNDERBURK, Jr., Appellant.

September 11, 1972.

BUSSEY, Justice:

The defendant Funderburk appeals from his conviction on a charge of grand larceny at the May 1971 term of the Court of General Sessions for Chesterfield County. On May 4, 1970, he was arrested on two warrants issued by magistrate Horton, charging him with the offenses of grand larceny and receiving stolen goods. He was thereafter released on bail and on May 8th retained counsel who immediately served and filed with the magistrate a written demand for preliminary hearing, which hearing was not held until October 2, 1970. In the meantime, the May term of court had commenced on May 18, 1970, and on that date an indictment based upon the aforesaid warrants was submitted to the grand jury and a true bill returned. The defendant was tried upon said indictment at a trial which commenced on October 12, 1970, and ended in a mistrial. Prior thereto, the defendant made a motion to dismiss and/or quash the indictment on the ground, inter alia, that under the facts and provisions of Code Section 43-232 the Court of General Sessions and the grand jury had no jurisdiction of the case at the time of the indictment and that such was accordingly void. Judge Baker, the presiding judge, denied the motion and ruled that "This court now has jurisdiction and it can be tried even though the indictment was returned at the May term and the preliminary hearing was held thereafter."

The cause came on again for trial on February 1, 1971, before Judge Weatherford and a jury and again resulted in a mistrial. Prior thereto defendant renewed his motion to quash which had been denied by Judge Baker. Judge Weatherford denied such motion, inter alia, for the reason that there had been no appeal from Judge Baker's holding, stating, "I hold that it is now res judicata. I cannot grant the motion in the retrial of a mistried case * * *."

The case came on for trial again at the May 1971 term before Judge Spruill with the motion to quash again being renewed, again the motion was denied, Judge Spruill pointing out the absence of any appeal or notice of intention to appeal from Judge Baker's ruling and saying, "I am inclined to think that is the law of the case and I deny your motion on that ground." The trial which ensued resulted in a conviction of the defendant on the grand larceny charge.

Section 43-232 of the Code reads as follows:

"When and how defendant may demand preliminary examination.

"Any magistrate who issues a warrant charging crime beyond his jurisdiction shall grant and hold a preliminary investigation of it upon the demand in writing of the defendant made at least ten days before the convening of the next court of general sessions, at which investigation the defendant may cross-examine the State's witnesses in person or by counsel, have the reply in argument if there be counsel for the State, and be heard in argument in person or by counsel as to whether a probable case has been made out and as to whether the case ought to be dismissed by the magistrate and the defendant discharged without delay. When such a hearing has been so demanded the case shall not be transmitted to the court of general sessions or submitted to the grand jury until the preliminary hearing shall have been had, the magistrate to retain jurisdiction and the court of general sessions not to acquire jurisdiction until after such preliminary hearing."

It will be noted that the demand for a preliminary hearing in this case was noticed exactly ten days before the convening of the next term of the Court of General Sessions. The record does not reflect any contention on the part of the State below that the demand for a preliminary hearing was not timely noticed and for the purpose of this appeal we treat the demand as having been timely made. Such being the case, it is quite clear that under the literal terms of the statute the Court of General Sessions had no jurisdiction of the case at the time of the indictment, to-wit: May 18, 1970. State v. Flintroy, 178 S.C. 89, 182 S.E. 311; State v. Adcock, 194 S.C. 234, 9 S.E.2d 730; State v. Nesmith, 213 S.C. 60, 48 S.E.2d 595; Blandshaw v. State, 245 S.C. 385, 140 S.E.2d 784; State v. Sanders, 251 S.C. 431, 163 S.E.2d 220.

We think it elementary, with no need for citation of authority, that the acts of a court with respect to a matter as to which it has no jurisdiction are void. The jurisdiction of a grand jury is co-extensive with the criminal jurisdiction of the court in which it is impaneled and for which it is to make inquiry. 42 C.J.S. Indictments and Information § 17, page 855; 38 C.J.S. Grand Juries § 34b, page 1029. The court being without jurisdiction, the indictment in this case was a nullity.

It is elementary that lack of jurisdiction of the cause or subject matter can be raised at any time, including for the first time on appeal in this Court. State v. Castleman, 219 S.C. 136, 64 S.E.2d 250; State v. Adams, 73 S.C. 435, 53 S.E. 538. Accordingly, it is immaterial that the defendant failed to appeal from the earlier ruling of Judge Baker or the intermediate ruling of Judge Weatherford, even if it be assumed that he had the right to do so.

In its brief the State apparently concedes the invalidity of the indictment for lack of jurisdiction if the demand for a preliminary hearing was timely made in accordance with the provisions of Code Sec. 42-232. It argues, however, that the language "at least ten days", contained in the statute, contemplated ten clear days, excluding both the day of service, May 8, and May 18th, the convening day of the court, and that, hence, the demand was not timely served. As previously noted, the record does not reflect that this contention was made or relied upon below; it is not mentioned in appellant's brief and appears for the first time in the brief for the State. It is well settled that where a particular question or issue has not been raised below and has not in anywise been passed upon by the lower court, it is not properly before us for decision. See numerous cases collected in West's South Carolina Digest, Appeal and Error, Key No. 169, and Criminal Law, Key No. 1028. Such contention not being properly before us, we refrain from passing thereupon and intimate no opinion as to any possible merit such contention might have if timely made.

Having concluded that the defendant was tried and convicted upon indictment which was a nullity, it follows that he was convicted in violation of Article I, Section 17 of the Constitution, as amended, now Article I, Section 11. His conviction is accordingly vacated.

The foregoing conclusions make it unnecessary to pass upon the other questions raised, none of which will necessarily arise again should the defendant hereafter be tried upon a valid indictment.

Reversed.

MOSS, C.J., and LEWIS, BRAILSFORD and LITTLEJOHN, JJ., concur.