Opinion
19640
June 19, 1973.
Messrs. Daniel r. McLeod, Atty. Gen., Walter Davies Merry, III, Hulan A. Small, and Hutson S. Davis, Jr., Asst. Attorneys General, for Appellant, cite: As to the Circuit Court's being without jurisdiction to grant new trials on purported appeals from the magistrate's courts, there having been no compliance with Section 7-104, Code of Laws of South Carolina (1962): 51 C.J.S., Justice of the Peace, Section 159; Section 7-102 of the Code of Laws of South Carolina, 1962; Section 7-104; 74 S.C. 443, 54 S.E. 600; 244 S.C. 323, 326, 137 S.E.2d 100, 101. As to the magistrate's not having committed prejudicial error through his examination of a state's witness relative to administration of a breathalyzer test: 228 S.C. 88, 88 S.E.2d 880; 236 S.C. 246, 113 S.E.2d 783; 85 S.C. 229, 67 S.E. 237, 238; 235 S.C. 395, 111 S.E.2d 669; Section 46-343 of the 1962 Code of Laws of South Carolina.
John D. Long, III, Esq., of Union, for Respondents, cites: As to the failure of the magistrate to file the record and statement of proceedings within ten days not divesting the Circuit Court of Jurisdiction to hear and dispose of the appeals: 4 Am. Jur.2d 536, Appeal and Error, Section 5; Section 7-103 of the Code; 244 S.C. 323, 137 S.E.2d 100; 235 S.C. 195, 110 S.E.2d 861; 74 S.C . 443, 54 S.E. 600; 70 S.C. 286, 49 S.E. 840. As to a magistrate's not being personally able to take over the direct examination of a State's Witness in front of the jury and ask leading questions, until a proper foundation for admission in evidence of a breathalizer test is established, without becoming an advocate for the State: 228 S.C. 246, 88, S.E.2d 880; 85 S.C. 229, 67 S.E. 237.
June 19, 1973.
These two cases were combined for appeal, both of them arising out of jury convictions on charges of driving under the influence of liquor in trials held before Magistrate L.V. Lee at the Union County Court House. Respondent Kershaw was tried on September 26, 1972, and Respondent Eaves on September 28, 1972.
Each of the respondents timely appealed to the circuit court, asserting trial errors on the part of the magistrate. The magistrate, although duly served, failed to file his records with the Office of the Clerk of Court for Union County in compliance with the provisions of Sec. 7-104 of the Code. Despite the absence of such records, the circuit court heard the appeals; concluded that there were trial errors in both cases, and accordingly reversed the convictions and ordered new trials. Both respondents were represented by the same counsel and, as far as the record shows, there was no effort on the part of respondents or their counsel, by mandamus or otherwise, to obtain the compliance of the magistrate with the provisions of Sec. 7-104, and the record here fails to reflect any notice to the magistrate, or anyone else representing the State, of the hearing of the appeals in the circuit court.
Under the principles enunciated in State v. Spray, et al., 74 S.C. 443, 54 S.E. 600, and State v. Adams, 244 S.C. 323, 137 S.E.2d 100, it is quite clear that the circuit court was in error. The judgments below are reversed but the respondents are still entitled to require the magistrate to file his records with the circuit court in compliance with Sec. 7-104 of the Code.
Reversed.
MOSS, C.J., and LEWIS, BRAILSFORD and LITTLEJOHN, JJ., concur.