39 S.E. 389 | S.C. | 1901
July 23, 1901. The opinion of the Court was delivered by These two cases, being both prosecutions for violations of an ordinance of the city of Florence, forbidding the sale of spirituous liquors within *240 the corporate limits of said city, were heard and will be considered together, as the most of the questions presented by the appeals are common to both. We propose to consider these questions in the order in which they are considered in the argument of the counsel for appellants.
Exceptions one, two and three raise a jurisdictional point and may be considered together. The point made is that the affidavits upon which these prosecutions were based, purport to have been sworn to before the city clerk of Florence, an officer who it is claimed has no authority to administer an oath. Assuming, without deciding, that the city clerk has not been invested with power to administer an oath, we think that the jurisdictional point is not well taken. It must be remembered that jurisdiction is of two separate and distinct kinds: 1st, jurisdiction of the subject, or, as it is usually phrased, of the subject matter. 2d, jurisdiction of the person, and very different rules apply, where the question is as to the jurisdiction of the subject, from those which are applicable where the question is as to the jurisdiction of the person. In the former the question of jurisdiction cannot be waived by any act or admission of the parties, for the very obvious reason that the parties have no power to invest any tribunal with jurisdiction of a subject over which the law has not conferred jurisdiction upon such tribunal. Hence the common expression, "Consent cannot confer jurisdiction." But in the latter the rule is very different. The party may, by consent, confer jurisdiction overhis person, or may waive the right to raise the question, whether the proper steps prescribed by law for obtaining such jurisdiction have been taken, as is illustrated by the familiar instance of a party who, though not served with a summons, appears and answers, and is thereby precluded from afterwards raising the question as to whether the court had acquired jurisdiction of his person. See Martin
v. Fowler, 51 S.C. at page 171; Rosamond v. Earle,
The fourth exception makes the point that, in the case against the appellant, Berry, there was no proof of the venue, as to the charge of selling whiskey to J.S. Dale. The testimony was that the witness bought the whiskey from Berry, "Back of Mr. Stackley's place of business, near a pump in a room." If the jury knew that the place indicated was within the lines of Florence County, and within the corporate limits of the city of Florence, that would be sufficient proof of the venue. State v. Williams, 3 Hill, 91, was a case very much like the present; for the testimony was that the liquor was bought at defendant's store, without stating where the store was situated. The Circuit Judge charged the jury that "Whether the defendant's store was within Marion District or out of it, was an inference of fact for them to decide. That it was not indispensably necessary for the witness to have said, in so many words, `it is within the district,' if the truth were so, it is enough; and if the jury knew the place described to be within the district, *243
that was enough." This charge was approved by the Court of Appeals, in express terms. This case was recognized and followed in the case of State v. Dent,
Exceptions fifth and sixth may be considered together, as they both make the point that there was a variance between the allegations and the proof. To make such a point effective, it is necessary to show that the variance is material, but here the variances alleged are as to the kind and amount of whiskey sold, and this is manifestly immaterial. The offense consists of the sale of "any spirituous, malt, alcoholic, vinous or other intoxicating liquors or liquids," and it matters not what may be the particular kind or name of such liquors. These exceptions are overruled.
The judgment of this Court is, that the judgment of the Circuit Court, in each of the cases above named, be affirmed.