
    The State vs. Alfred Hatcher.
    
      Presumption — Lapse of Time— Verdict and Sentence.
    
    After tlie lapse of more than twenty years the Court will not set aside the verdict of guilty upon an indictment for misdemeanor, and the sentence indorsed upon the record, upon the ground that the defendant had not been arrested, nor had entered into recognizance In such case the law presumes omnia esse rite acta, especially if it appears that seven years after the trial and sentence, the defendant was served with sci.fa. guare executio non, made default, and that execution issued.
    BEFORE WARDLAW, J., AT EDGEFIELD, FALL TERM, 1857.
    It appeared by the record that at Fall Term, 1835, the defendant was indicted for keeping a riotous and disorderly house, and a true bill found; that at Spring Term 1837, a verdict of guilty was rendered, and the following sentence endorsed on the indictment. “Let the defendant be imprisoned two months and pay a fine of $500. J. B. O’Neall, P. J.” There was an affidavit and also a warrant to arrest, but no entry or indorsement which showed that the defendant had been arrested, or that he had entered into recognizance to appear.
    The defendant made affidavit that he had never been arrested under the warrant; that he had never entered into recognizance to appear: that he was absent from the State from the Fall of 1836, until December, 1838; and that he had no knowledge that the proceedings were pending against him until long after the trial and conviction; and he moved that all the proceedings subsequent to the finding of the grand jury be set aside.
    The report of his Honor, the presiding Judge, is as follows :
    “ I refused a motion to set aside, the proceedings. Besides the presumption that the original proceedings were regular, it appeared tbat a sci. fa. quare executio non bad, under tbe judgment, been personally served on the defendant, after the expiration of seven years from the sentence, and that no cause having been shown to the contrary, an order for execution passed by default.” . ,
    The defendant appealed on the grounds:
    1. Because the defendant was never arrested under the warrant issued in the said cause, or otherwise made a party to the said indictment.
    2. Because the scire facias issued on the sentence was unauthorized, and null and void.
    
      Bauskett, for appellant,
    made the following points:
    1. That the Court of General Sessions cannot bring its authority in action on any one unless he is personally present, has been arrested, or has voluntarily made himself a party to some proceeding by entering into a recognizance to answer the charge — in other words he must be personally present in Court, or he must be made a party. In this case the proceedings, independent of his own affidavit, do not show that the defendant was a party, but the contrary.
    2. The sentence was never pronounced by the Court on the defendant, but was indorsed by the Judge before whom the ease was tried on the indictment, and left with the Clerk of the Court.
    3. Presumption of the regularity of the proceedings arising from the lapse of time is a legal fiction, does not prevail in criminal cases against the accused, and is worth nothing, where the truth is known to be otherwise, in the Court of Sessions. It is admitted that a different rule prevails in re-gárd to rights of property.
    
      4. The written sentence left by tbe presiding Judge, if valid and now in force as to tbe fine, (an effort to collect wbicb gave rise to tbe motion on circuit,) is.equally good as to tbe imprisonment. And it is submitted and maintained, that if tbe defendant were now brought into Court to be sent to jail under that sentence, be would have a right to show for cause that tbe whole proceedings were ex parte, or rather tbe State would have to show that the defendant was a party; and lapse of time is inadmissible to prove tbe record of arrest or recognizance.
    5. The sci. fa. guare executio non was simply a void proceeding, arising from inadvertence and mistake on tbe part of tbe State’s officers. If there was a judgment of tbe Court tbe sci. fa. was proper; if not, it was irregular, void, and obnoxious to tbe disregard of tbe defendant. It was but a continuation of tbe old proceeding. Wright vs. Nutt, 1 T. R., 388; 2 Tidd, Pr., 983.
    6. Tbe serving a paper on one from tbe Court of Sessions not under arrest or recognizance to appear and answer, is a proceeding wholly unknown to tbe practice and procedure of that Court; and when done, may be disregarded without incurring liability, or the penalty of contempt. The proceeding should have been a bench warrant to arrest tbe defendant to answer to tbe charge in tbe indictment.
    7. The not showing cause to tbe sci. fa., like mere silence to an unauthorized question, simply left tbe matter where it stood before, neither implicating tbe defendant nor conferring authority 'on tbe Court. And if tbe defendant, by return, bad shown the grounds of the present motion, they were not new matter unknown 'to tbe Court, but such as tbe Court, would, of its own mere motion, take judicial notice.
    
      Owens, Solicitor, contra.
   Tbe opinion of tbe Court was delivered by

O’Neall, J.

Tbe sentence in tbis case appears to have been pronounced more than twenty years ago. Tbe defendant had been tried and convicted of a misdemeanor at the same Court at which tbe sentence was pronounced. He alleges now, that be bad never been arrested, nor bad entered into a recognizance for bis appearance. '

After such a lapse of time, it is in vain to say that neither tbe warrant, the certificate of arrest, nor tbe recognizance can be found: the law presumes omnia esse rite acta.

But in addition to this, tbe defendant has been served with á scire facias guare executio non: made default, and thereupon execution issued for tbe collection of tbe fine. Tbis would be enough to prevent bis present motion from receiving any favor from tbe Court.

In Sartell vs. Brailsford, 2 Bay, 333-8; after twelve years from final judgment tbe Court refused to set aside tbe proceedings and judgment, although tbe party alleged she was a feme covert at tbe execution of tbe bond on which tbe action was founded. That case founded on an alleged void instrument is certainly parallel to this, where, it is pretended tbe party was never arrested.

Tbe motion is dismissed.

Wardlaw, Withers, Whither, Glover and Muhro, JJ., concurred.

Motion dismissed  