It of course must be admitted that this Court ordinarily will not assume jurisdiction to review the exercise of a Circuit Judge's discretion in imposing a sentence within the limits prescribed by law (State v. Johnson, 159 S.C. 165,156 S.E., 353); but it does not at all follow that the Court is powerless to intervene, or should hesitate to intervene, when the Circuit Judge's discretion either actually or apparently has been influenced by matters not properly entitled to consideration, since in that event the discretion has been erroneously exercised. In State v. Harvey, 128 S.C. 447,123 S.E., 201, this Court reversed the refusal of the Circuit Judge to permit the defendant to withdraw a plea of guilty after sentence, when it appeared that the Circuit Judge had taken the solicitor and another into his room and discussed the case in defendant's absence before passing sentence. In State v. Simms, 131 S.C. 420, 422,127 S.E., 840, this Court set aside a sentence and remanded the case for resentence, because the Circuit Judge considered information concerning the defendant received in chambers and in the absence of the defendant and his counsel. The basis of these decisions obviously was that the discretion of the Circuit Judge in passing sentence had been influenced or might have been influenced by matters not properly entitled to consideration.
While all statements in the instant case were taken in the presence of the appellant and in open Court, and while feeling *Page 244 complete confidence that there was no intention whatever in this case to do the appellant an injustice, yet I am unable to escape the conviction that through the consideration of matters not fairly entitled to consideration in passing sentence an apparent injustice has been accomplished, though unintentional, the result of which is just as grievous to appellant as if it had been deliberately brought about.
Upon the convening of the Court of General Sessions for Marlboro County the solicitor handed out three indictments against the appellant, one charging violation of the liquor laws, another charging the maintenance of a nuisance, and another (the charge involved in this appeal) charging the keeping on his premises and operating and permitting to be kept on his premises an unlawful slot and vending machine. True bills were returned on all three indictments. On the charges relating to violation of the liquor laws and maintaining a nuisance regular warrants previously had been issued in the usual manner, and the defendant had demanded a preliminary hearing, which had not been held. No warrant had previously been issued on the charge relating to the keeping and operating an unlawful slot machine, but the solicitor of his own motion prepared and submitted to the grand jury an indictment based on that charge. When the true bills were returned by the grand jury the defendant stated that although a preliminary hearing on the charges relating to violation of the liquor laws and maintaining a nuisance had not been given him in accordance with his demand, yet he was ready to go to trial on those charges without a preliminary hearing. The solicitor, however, refused to bring those cases to trial, but called for trial the case relating to the maintenance and operation of a slot machine.
When the slot machine case was called for trial the defendant moved for a continuance on the ground that he had been given no opportunity to prepare his defense, but he declared himself ready and willing to enter upon the trial of the other two cases, which he was prepared to meet. Defendant's motion for a continuance of the slot machine *Page 245 case having been refused, he thereupon entered a plea of guilty as to that charge, and the Circuit Judge imposed the maximum sentence permitted by the law.
While no reason appears in the agreed case for appeal for the solicitor's refusal to bring to trial the cases charging violation of the liquor laws and maintaining a nuisance, yet in his brief he says that in view of the provisions of Section 936, Code 1932, the action of the magistrate in transmitting the cases to the Court without a preliminary hearing was without warrant of law, that the Court had no jurisdiction, and that the indictments based on those warrants would have been quashed on motion. It would seem, however, that the reason assigned is quite plainly unsound, because the motion for a preliminary hearing was necessarily withdrawn when the defendant in open Court declared himself ready and willing to go to trial without a preliminary hearing, and any right to a preliminary hearing given by the statute was clearly waived. There can be no doubt that the right to a preliminary hearing, though previously demanded, can be waived (State v. Rabens, 79 S.C. 542,60 S.E., 442, 1110), and the Court had unquestioned jurisdiction to proceed to trial the moment the defendant in open Court expressed his readiness and willingness to proceed. There was, therefore, plainly no legal obstacle in the way of the immediate trial of the cases.
The situation in which appellant found himself may be fairly stated in this way: He stood indicated on three separate charges. He had been previously advised by the regular issuance of warrants as to two of the charges, and he was ready to meet those charges and to enter upon an immediate trial, but he had been given no previous notice of the third charge, other than by the action of the solicitor in handing out an indictment after the convening of Court, and he was not prepared to meet it. Nevertheless, he was denied a trial of the charges of which he had been previously advised and which he was prepared to meet, while he was required to meet the charge of which he had not been previously *Page 246 advised and which he was not prepared to meet. To say the least of it, it must be admitted that appellant was thus placed in a most disconcerting predicament, and if it should be suggested that he then possibly might have demanded a preliminary hearing on the slot machine charge and thereby secured a continuance, it can scarcely be contended that his situation was particularly conducive to seasoned reflection and a clear appreciation of this possible expedient, the availability of which it is not now necessary either to affirm or deny.
Although the law clothed appellant with the presumption of innocence of the two charges previously preferred, involving the violation of the liquor laws and maintaining a nuisance, and he was ready and willing to enter upon an immediate trial, yet through no fault of his he was denied the opportunity to have his innocence of those charges established by the judgment of the Court. Such being the case, fairness clearly demanded that the continued pendency of those charges should not be permitted to prejudice appellant in any way, and the Circuit Judge was not justified in having his discretion influenced, or even apparently influenced, by the pendency of those charges, or appellant's possible guilt of the charges, in passing sentence upon him in the slot machine case now on appeal. Nevertheless, when he came to pass sentence upon appellant in the slot machine case now on appeal, he heard and evidently considered statements of several officers of the law tending to show appellant's guilt of violation of the liquor laws and his guilt of maintaining a nuisance, the two charges as to which he had been denied a trial. An Internal Revenue investigator and a State constable made statements relating to appellant's violation or suspected violation of the liquor laws. The sheriff of the county stated that appellant bore a bad reputation, that the sheriff had been repeatedly called to appellant's place to quell disturbances, and that his place of business constituted a very disorderly place. The solicitor stated that he had received numerous and repeated complaints against the *Page 247 place operated by appellant, and that in his opinion it constituted a menace to law and order in Marlboro County.
The statements here referred to clearly had no direct connection with the degree of flagrancy of appellant's guilt of violation of the law against operating and maintaining a slot machine, and they were only directly relevant to the charges based upon violation of the liquor laws and the maintenance of a nuisance. That the Circuit Judge was influenced by these statements is clearly indicated by the fact that he imposed the maximum sentence for violation of the law against slot machines. When appellant was being denied the opportunity to establish his innocence of the charges involving violation of the liquor laws and maintaining a nuisance, it seems very clear to me that appellant's probable or possible guilt of these charges should not have been given consideration in passing sentence in another case.
Even if appellant is guilty of all of the charges made against him and deserves all that he has received at the hands of the Court, yet it is not conducive to respect for the law that the law should be unfair to him or that it should even seem to be unfair. In order to inspire a proper public confidence, the law should not only guard against actual unfairness on its part, but it should also guard against even the appearance of unfairness.
For the foregoing reasons, I am of the opinion that the sentence should be set aside, and that the case should be remanded to the Circuit Court so that appellant may be resentenced.