The opinion of the Court was delivered by
Mr. Justice Carter.
The defendant, E. D. Clamp, was tried before the Mayor
pro tempore
of the Town of Mayesville on the charge of violating the traffic ordinance of said town, it being charged
in the warrant that the defendant “was speeding the automobile or running in excess of fifteen (15) miles per'hour,” which trial resulted in a verdict of “guilty of speeding,” upon which the Mayor
pro tempore
imposed a fine of $75 or 30 days on the chaingang. Thereafter the defendant appealed to the Court of general sessions from the fine imposed, upon several exceptions. The appeal from the Mayor’s Court was heard by Hon. J. Henry Johnson, Judge presiding at the Court of general sessions for Sumter County, who' overruled defendant’s exceptions .and ordered the sentence carried out. From the order issued by Judge Johnson, the defendant has appealed to this Court, upon the ground that the warrant under which the defendant was tried before the Mayor
pro tempore
was fatally defective, contending that the defendant was entitled to his release as a matter of law upon motion. The other exceptions upon which the matter was heard before Judge Johnson are not pressed before this Court.
So much of the order of Judge Johnson that is pertinent to the question raised before this Court is as follows :
“This matter came on to' be heard before me upon appeal by the defendant from his conviction and sentence for violating the traffic ordinance of the Town of Mayesville. The appeal was argued before me in open Court at Sumter, and I have reserved my decision upon the matters involved until the present.
“1. The first exception alleges that the warrant issued was fatally defective, in that the facts were alleged on information and belief without stating the source of information and the grounds of belief.
“I find nothing in our statutes or in the decisions of our Appellate Court requiring arrest warrants issued upon information and belief to set forth the 'source of information and the grounds of belief.’ Such .a requirement in arrest warrants would tend to a miscarriage of justice in many instances, and would be tantamount to requiring the
prosecution to furnish defendant with the names of the witnesses against him, and this has never been required in this State, even in felonies.
State v. Robinson,
61 S. C., 106, 39 S. E., 247. See
City of Spartanburg v. Parris, 85
S. C., 227, 67 S. E., 246.
“Many reasons why public policy should not require arrest warrants to ‘set forth the source of information and grounds of belief’ might be advanced, and such reasons have probably influenced the law making body of this State, since there is no positive enactment requiring the same. In fact the only specific requirement with reference to arrest warrants is found in Section 857 of the Criminal Code, and is as follows : ‘Provided, that it shall not be necessary to set forth the source of information, the facts and grounds of belief in the affidavit upon which a warrant of arrest shall issue, but it shall only be necessary in cases of search warrants.’
“I do not express an opinion as to whether this section his general application or refers only
to
warrants under that particular chapter. But I do think it is worthy of consideration that the only time the Legislature has expressed itself upon this matter, it has made the provision above quoted.
“A distinction in the case of a search warrant is readily apparent, since the fundamental law of the land protects the citizens against unreasonable search and seizure, and, in order that the officer may be sure, before issuing a search warrant, of the reasonableness of the proposed search, it is proper that a search warrant should set forth the source of information and grounds of belief. In the instant case the offense charged was plainly and substantially set forth, and that is the gist of Section 4399, Vol. 3, Code of 1922, and Sections 60 and 26 of the Code of Criminal Procedure, Code of 1922, so1 far as the same are pertinent to the issue raised in this appeal. * * *
“It is therefore, ordered, adjudged and decreed that the exceptions in this case be overruled, and that the sentence against the appellant be carried out.”
At the call of the case for trial, the defendant, by his attorney, moved to dismiss the warrant on the ground that the same was fatally defective, in that the affidavit upon which the warrant was issued did not state the source of information or grounds of belief. The motion was overruled, and the case proceeded to trial, with the result above stated.
The affidavit upon which the warrant was issued, omitting the formal parts, is in the following language:
“Personally appeared before me M. T. Burnside, a notary public of said County and said State, N. W. James, who, being duly sworn, says that in the Town of Mayesville, S. C., on August 16, 1926, one E. D. Clamp did drive an automobile at an unlawful rate of speed, to wit: Thirty miles per hour, on the Main Street of said town, and that at said time and place the said E. D. Clamp did drive said automobile on said street in a dangerous and reckless manner. The same being stated on information and belief. N. W. James. Duly probated.”
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The opinion of the Court was delivered by
Mr. Justice Carter.
The defendant, E. D. Clamp, was tried before the Mayor
pro tempore
of the Town of Mayesville on the charge of violating the traffic ordinance of said town, it being charged
in the warrant that the defendant “was speeding the automobile or running in excess of fifteen (15) miles per'hour,” which trial resulted in a verdict of “guilty of speeding,” upon which the Mayor
pro tempore
imposed a fine of $75 or 30 days on the chaingang. Thereafter the defendant appealed to the Court of general sessions from the fine imposed, upon several exceptions. The appeal from the Mayor’s Court was heard by Hon. J. Henry Johnson, Judge presiding at the Court of general sessions for Sumter County, who' overruled defendant’s exceptions .and ordered the sentence carried out. From the order issued by Judge Johnson, the defendant has appealed to this Court, upon the ground that the warrant under which the defendant was tried before the Mayor
pro tempore
was fatally defective, contending that the defendant was entitled to his release as a matter of law upon motion. The other exceptions upon which the matter was heard before Judge Johnson are not pressed before this Court.
So much of the order of Judge Johnson that is pertinent to the question raised before this Court is as follows :
“This matter came on to' be heard before me upon appeal by the defendant from his conviction and sentence for violating the traffic ordinance of the Town of Mayesville. The appeal was argued before me in open Court at Sumter, and I have reserved my decision upon the matters involved until the present.
“1. The first exception alleges that the warrant issued was fatally defective, in that the facts were alleged on information and belief without stating the source of information and the grounds of belief.
“I find nothing in our statutes or in the decisions of our Appellate Court requiring arrest warrants issued upon information and belief to set forth the 'source of information and the grounds of belief.’ Such .a requirement in arrest warrants would tend to a miscarriage of justice in many instances, and would be tantamount to requiring the
prosecution to furnish defendant with the names of the witnesses against him, and this has never been required in this State, even in felonies.
State v. Robinson,
61 S. C., 106, 39 S. E., 247. See
City of Spartanburg v. Parris, 85
S. C., 227, 67 S. E., 246.
“Many reasons why public policy should not require arrest warrants to ‘set forth the source of information and grounds of belief’ might be advanced, and such reasons have probably influenced the law making body of this State, since there is no positive enactment requiring the same. In fact the only specific requirement with reference to arrest warrants is found in Section 857 of the Criminal Code, and is as follows : ‘Provided, that it shall not be necessary to set forth the source of information, the facts and grounds of belief in the affidavit upon which a warrant of arrest shall issue, but it shall only be necessary in cases of search warrants.’
“I do not express an opinion as to whether this section his general application or refers only
to
warrants under that particular chapter. But I do think it is worthy of consideration that the only time the Legislature has expressed itself upon this matter, it has made the provision above quoted.
“A distinction in the case of a search warrant is readily apparent, since the fundamental law of the land protects the citizens against unreasonable search and seizure, and, in order that the officer may be sure, before issuing a search warrant, of the reasonableness of the proposed search, it is proper that a search warrant should set forth the source of information and grounds of belief. In the instant case the offense charged was plainly and substantially set forth, and that is the gist of Section 4399, Vol. 3, Code of 1922, and Sections 60 and 26 of the Code of Criminal Procedure, Code of 1922, so1 far as the same are pertinent to the issue raised in this appeal. * * *
“It is therefore, ordered, adjudged and decreed that the exceptions in this case be overruled, and that the sentence against the appellant be carried out.”
At the call of the case for trial, the defendant, by his attorney, moved to dismiss the warrant on the ground that the same was fatally defective, in that the affidavit upon which the warrant was issued did not state the source of information or grounds of belief. The motion was overruled, and the case proceeded to trial, with the result above stated.
The affidavit upon which the warrant was issued, omitting the formal parts, is in the following language:
“Personally appeared before me M. T. Burnside, a notary public of said County and said State, N. W. James, who, being duly sworn, says that in the Town of Mayesville, S. C., on August 16, 1926, one E. D. Clamp did drive an automobile at an unlawful rate of speed, to wit: Thirty miles per hour, on the Main Street of said town, and that at said time and place the said E. D. Clamp did drive said automobile on said street in a dangerous and reckless manner. The same being stated on information and belief. N. W. James. Duly probated.”
It is admitted that Mr. N. W. James, the town policeman, who made this affidavit, did not see the defendant driving the automobile at an excessive rate of speed, and that the warrant was sworn out solely on information and belief, as stated in the affidavit. For this reason the appellant contends that the warrant was fatally defective, and that he was therefore entitled to be released as a matter of law. In support of this position counsel for appellant calls special attention to the case of
Murray v. Harris,
112 S. C., 342, 99 S. E., 798, 5 A. L. R., 1152, cited in appellant’s brief. A study of the opinion in that case convinces us that the same is not controlling in the case at bar. The affidavit and warrant in question in that case were involved in a requisition proceeding, wherein the Governor of the State of Georgia made requisition upon the Governor of the State of South Carolina for the arrest and delivery of the respondents in that case to the agent of the State of Georgia, to be carried to the State of Georgia for trial on the charge of burglary.
It clearly appears from the opinion in that case that the Court had in mind the rules and principles applicable to requisition cases, wherein one State makes request of another State for the arrest and return of a person alleged to have violated the laws of the first named State, and did not have in mind the practice that should govern the trial of cases in a magistrate’s Court or in a Mayor’s Court in this State. In the opinion rendered in that case, the Court cited as authority for its position
Rice v. Ames,
180 U. S., 371, 372, 21 S. Ct., 406, 45 L. Ed., 577, which latter case involved a requisition upon the Governor of the State of Georgia by the Governor of the State of New York for the arrest and delivery of a person alleged to- have violated the laws of the 'State of New York.
As we view the opinion in the case of
Murray v. Harris, supra,
the same should not be held to govern the decision of the Court in the case at bar. As pointed out in the order of his Honor, Judge Johnson, there is nothing in our statutes requiring arrest warrants issued upon information and belief to set forth the “source of information and grounds of belief,” neither is there anything in our statutes requiring such information to be set forth in the affidavit upon which the warrant is based. Section 26 of the Code of Criminal Procedure, which applies to warrants issued by an Intendant as well as to warrants issued by a Magistrate, reads as follows :
“All proceedings before Magistrate in criminal cases shall be commenced on information under oath, plainly and substantially setting forth the offense charged, upon which, and only which, -shall a warrant of arrest issue.”
According to our view, this section is applicable to the question under consideration, and should not be construed to require that the “source of information and the grounds of belief” be set forth in the warrant or the affidavit upon which the warrant is based.
The exceptions are therefore overruled, and it is the judgment of this Court that the judgment of the lower Court be, and is hereby, affirmed.
Messrs. Justices Brease and Stabrer concur.
Mr. Chiep Justice Watts and Mr. Justice Cothran dissent.