39 S.E. 967 | S.C. | 1901
July 23, 1901. The opinion of the Court was delivered by This was an action of claim and delivery, brought before a magistrate to recover possession of certain property — five quarts of whiskey — taken from the possession of the plaintiff by the defendant, who, upon demand, refused to deliver the same to the plaintiff. The case came on for trial before a magistrate and a *218 jury. The testimony, which is set out in the "Case," as the question arises on a motion for a nonsuit, based solely upon the ground "that the plaintiff had failed to make out his case," should be incorporated in the report of the case. The motion for a nonsuit was granted by the magistrate, and the plaintiff appealed to the Circuit Court, where the appeal was dismissed by the Circuit Judge in a short order, giving no reason whatever for his conclusion. The plaintiff appealed from the order dismissing his appeal upon the several grounds set out in the record, which, under the view which we take of the case, need not be set out here. The magistrate in granting the nonsuit assigned his reasons therefor as follows: "Because it was disclosed by testimony of plaintiff that the whiskey was not in transit to destination, but had reached that destination, to wit: Salak, S.C. on Friday, September 21st, 1900, and that on the day the said whiskey was seized it had been transported from Salak, S.C. to Greenwood, S.C. and then was in the act of being transported back to Salak, S.C.; all of which took place inside of this State, after it had reached its destination, a day at least, making it, to my mind, clearly contraband and subject to seizure."
The magistrate evidently acted under the erroneous impression that, upon a motion for a nonsuit, it was his province, instead of that of the jury, to weigh the testimony and determine what were the proper inferences to be drawn from such testimony. This was clear error, for the rule is too well settled to require the citation of any authorities, that, upon a motion for a nonsuit, the only question is whether there is any testimony tending to establish the plaintiff's case; and that it is not the province of the Court (in this instance, the magistrate,) to draw conclusions from the testimony, as that is the exclusive province of the jury. So that even if it be assumed that the testimony was sufficient to satisfy the mind of the magistrate, there would still be error. But was there any testimony tending to establish the plaintiff's case? There was testimony tending to show that *219 plaintiff had bought the whiskey in Augusta, Ga., for his own personal use, and had received it at Salak, where he lived, the day before it was seized; that he went to Greenwood on a visit, on the morning of 22d September, 1900, and took the whiskey with him for his own use while there; that he left home with the intention of spending Saturday and a part of Sunday in Greenwood, but finding that his brother, who seems to have been with him, could not stop, concluded to return on Saturday; and that the whiskey was seized at Greenwood before he left by the defendant, who took it into his own possession, and refused, upon demand, to return it to plaintiff. There was no testimony whatever tending to show that plaintiff had made, or intended to make, any unlawful use of the whiskey, and on the contrary the testimony was that he had bought the whiskey outside of the limits of the State and taken it with him to Greenwood for his own personal use. The only testimony that could by any possibility be regarded as even tending to show that the whiskey was contraband, and, therefore, subject to seizure, was the plaintiff's own statement, as follows: "Davenport said he seized because he heard I was transporting. Said he was obliged to take it. I knew he was State constable. I had no intention of taking it out of the State. Brought it here [Greenwood] with the intention of drinking before I went back home." It seems to us very clear that the testimony on the part of the plaintiff tended to show that the whiskey belonged to the plaintiff and was in his possession for a lawful use, and in the absence of any evidence to the contrary, the plaintiff would have been entitled to recover. Whether this evidence on the part of the plaintiff was entitled to be believed, was certainly not a question which the magistrate could determine upon a motion for a nonsuit, but was a question exclusively for the jury. So, also, even if there was any evidence tending to show that the whiskey was contraband and, therefore, liable to seizure, that, also, was a question for the jury and not for the magistrate to determine. There was, therefore, error in granting *220 the motion for a nonsuit, and also error on the part of the Circuit Judge in not so holding.
The judgment of this Court is, that the order of the Circuit Judge, dismissing the appeal from the magistrate's judgment of a nonsuit, be reversed, and the case is remanded to the Circuit Court, with instructions to reverse the judgment of nonsuit granted by the magistrate, and to grant a new trial.
MR. JUSTICE JONES concurs in the result.
