Opinion
8133
March 12, 1912.
Before DeVORE, J., Clarendon, Spring term, 1911. Affirmed.
Indictment against S.D. Powell before Magistrate D.J. Bradham. Defendant appeals from Circuit order affirming magistrate judgment.
Mr. Charlton DuRant, for appellant. cites: To convict for failure to perform road duty, what must be shown? Crim. Code 460; Code 1902, 1364, 1352, 1353, 1355, 1363, 1368. Prosecution must show nonexistence of negative: 20 Am. Dig. Cen. Ed. 114, 35, 78, 80; 1 Green. Ev. 45, 104, 106.
Solicitor P.H. Stoll, contra, cites: Exceptions relate to questions of fact and are not reviewable here: 38 S.C. 258; 36 S.C. 504; 73 S.C. 71; 71 S.C. 404.
March 12, 1912. The opinion of the Court was delivered by
This case was heard before magistrate Bradham on a warrant charging the defendant with failure to perform road duty, under sec. 460 of Criminal Code. The defendant was found guilty and sentenced. An appeal was taken to the Court of General Sessions and was heard by his Honor, Judge DeVore. The judgment of magistrate's court was affirmed.
From this order an appeal was taken to this Court. All of the exceptions relate to the testimony, and are to the effect that the State failed to make out its case, and that there was not sufficient testimony on which to base a verdict of guilty. This Court has repeatedly held that a finding of fact by the magistrate, affirmed by the Circuit Judge, cannot be reviewed by this Court, if there is any evidence to support it. Seegers Bros. v. Seaboard Air Line Ry., 73 S.C. 83; 52 S.E. 797; 4 L.R.A. (N.S.) 746n; Lewis v. Railroad Co., 78 S.C. 35, 58 S.E. 989. There is such evidence here.
The judgment of the Circuit Court is affirmed and case remanded for the purpose of executing sentence.
THE CHIEF JUSTICE and the other Justices concur in the result.