State v. Atterberry, 124 S.E. 648

124 S.E. 648 | S.C. | 1924

Lead Opinion

October 22, 1924. The opinion of the Court was delivered by The facts as claimed by the State are as follows:

"The defendant-appellant, David G. Atterberry, was tried at the special term of the Court of General Sessions for Aiken County, on the 13th day of July, 1923, on an indictment charging violation of the Prohibition Law, in that, the said defendant-appellant was transporting and had in his possession contraband liquors.

"The jury found a verdict of guilty, on the count charging the defendant with having in his possession contraband liquors, and the presiding Judge sentenced the defendant to five months' hard labor on the public works of Aiken County.

"The case arose out of the following circumstances, to wit: On the morning of December 16, 1922, Deputy Sheriffs Robinson and Shepherd were on their way to Aiken from Warrenville, and passed the defendant on the public highway, going toward Warrenville from the direction of Aiken. It had rained the night before, and the defendant's automobile track was the only one that had passed along the road since the rain. The Deputy Sheriff noticed where the automobile had been turned around, where an old road led into the woods, and, suspecting that something was wrong, followed a man's track to where the automobile stopped, some distance into the woods, where it led to a gallon jug with a quantity of whiskey in it. Deputy Sheriff Robinson left Shepherd to watch this jug, and came on to Aiken. Later in the day, he returned to the place where he had left Shepherd, and saw Shepherd and the defendant-appellant coming out of the woods with the jug of whiskey. While Robinson was gone, Deputy Shepherd saw the defendant return in an automobile to the place, and leaving the automobile near the road went in the woods near where the jug was left, and picked up two more gallon jugs, which were full of whiskey, and started back to the automobile. After the defendant had walked a few steps with the whiskey, Deputy Shepherd hailed him with these words: `Well, Dave what do you say now?' When Shepherd hailed him, the defendant struck the two jugs together and broke them, and the whiskey was spilled on the ground. In answer to Shepherd's inquiry as to whether he had broken the jugs, the defendant replied: `The first thing I thought of was the evidence.' The defendant admitted then, and afterwards at the Courthouse, in the presence of Sheriff Howard, that it was his whiskey, and that he had paid $10 a gallon for it."

The appellant pleaded not guilty and denied making a confession. He claimed that he went into the woods to attend to a call of nature and saw the jugs of whiskey and picked them up in mere curiosity, and when the officer called to him he dropped the jugs and they broke. The appellant was convicted of having whiskey in his possession and makes this appeal.

I. The appellant was riding with a man named Delvin. When Delvin was on the stand, the appellant's attorney asked him: "For what purpose did Mr. Atterbury leave the car at that turn in the road?" The Solicitor objected, and the objection was sustained. This is the first assignment of error.

It cannot be sustained. The only way Mr. Delvin could know the purpose of Mr. Atterberry was from statements made by Mr. Atterberry. These statements were obviously incompetent. The purpose of a man is locked up within him and, when necessary to be established, then it is for the jury to determine as an inference from the facts proven. Of course, the defendant himself can testify as to his purpose, but he is the only one who knows.

II. The State was permitted to show in reply a confession by the defendant. The presiding Judge allowed the State to offer evidence as to the confession, but gave the defendant the right to offer testimony to the contrary. This was entirely proper.

III. The defendant moved the Court to require the Solicitor to make the opening speech to the jury before the defendant's attorneys were required to make their arguments. This was refused. This was error. Rule 59 of the Circuit Court is very clear and reads:

"The party having the opening in argument shall disclose his entire case and on his closing shall be confined strictly to a reply to the points made, and authorities cited by the opposite party."

It is difficult to see how a stronger statement could have been made. It would require a case of unquestionable authority and clearness to warrant a contrary holding.

State v. Garlington, 90 S.C. 144, 145; 72 S.E., 564, is not such a case. The quotation made by the State is followed by these words, "But no such question is presented here," and the quotation is a mere dictum. The wisdom of this rule is seen most clearly in a case in which the State relies upon circumstantial evidence. It may be that the circumstances are to all appearances disconnected, and yet an able prosecuting attorney, but for this rule, would be able to present a connection, little suspected by the defendant or his counsel. If the prosecuting attorney is allowed to reserve his argument for the closing speech, the defendant will not be allowed to show any defect in the chain of evidence. The authorities quoted by the prosecution, however inapplicable to the case, must be passed without a chance of review. The rule is clear and mandatory and a departure from it reversible error.

IV. Counsel for the defendant were criticized for defending in so plain a case. This also was error. The guilty are entitled to be heard by counsel. Attorneys cannot convict their clients before the trial.

V. The sixth and seventh exceptions cannot be sustained. There was no charge on the facts, but only an admonition to the jury to find a just verdict.

VI. The next assignment of error was in failure to charge the defendant's second request. It was substantially charged. This applies to the last exception.

The judgment is reversed, and a new trial ordered.

MR. JUSTICE WATTS concurs.

MR. ACTING ASSOCIATE JUSTICE W.T. AYCOCK concurs in result.

MESSRS. JUSTICES COTHRAN and MARION dissent.

MR. CHIEF JUSTICE GARY did not participate.

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Dissenting Opinion

I concur in the opinion of Mr. Justice Fraser, concurred in by Mr. Justice Watts, that the judgment of the lower Court should be reversed; but in view of the fact that the distinguished members of this Court have divided equally, I deem it advisable to set forth the reasons which lead me to that conclusion.

All of the exceptions should be overruled, in my opinion, except those numbered 3 and 9. The third exception is based on the refusal of the presiding Judge to require the Solicitor to make the opening argument to the jury under rule 59 of the Circuit Court. This rule is correctly set forth in the opinion of Mr. Justice Fraser, and it so appears in an appendix to the Code of Civil Procedure, 1922. It seems to the writer that the true construction of the rule is made apparent when its actual terms are examined, and when it is observed that the reference is to "points made and authorities cited," it seems clear that it is not the purpose of the rule to refer solely to questions of law. Unless, therefore, there is some authority requiring a different conclusion, the Solicitor should have been required to "disclose his entire case," the form of the rule being absolute and providing for no deviation. Similar rules are in very general use, and there is nothing in the rules of the Circuit Court to suggest that rule 59 applies solely to the Common Pleas, and not to the Court of General Sessions. It is but fair that the party who has the advantage of the last address to a jury should be required to open and apprise the opposing party of his views as to his entire case. I would not be understood as expressing the opinion that the trial Judge has no discretion whatever with reference to the rules of the Court, but in Barnettv. Gottlieb, 98 S.C. 180; 82 S.E., 406, this Court says unequivocably that the trial Judge "had no right to suspend or change rule 59 of the Circuit Court." So far as the rule before us in this case is concerned, therefore it is clear that the presiding Judge's discretion should have reference solely to the degree of compliance with the rule. Having no authority to suspend or change the rule, it lies within the discretion of the presiding Judge to determine whether the requirements of the rule have been met.

The power to make its own rules is conferred upon the Circuit Court by Section 33, Code of Procedure, 1922, and when a rule so made is not repugnant to or in conflict with law, it has all the force of law and must be complied with. 15 C.J., 909. The Circuit Court having the power to make its own rules, there is doubt that this Court has power to suspend them in a particular case. 15 C.J., 914.

In Gadsden v. Sands, 115 S.C. 205; 105 S.E., 286, the decision apparently supports the trial Judge, who had refused to require the plaintiff to open. It is obvious, however, that this Court was under the impression that the question to be decided was whether or not the defendant was entitled to open and reply. A careful reading of the case indicates that the point involved was practically the same as that in this case; but in view of the reasoning pursued in the opinion, I cannot accept the decision as settling the point before us. The authority of that case is not questioned, but the reasoning of the Court indicates clearly that there was no purpose to hold that the presiding Judge was right in refusing to require the plaintiff to open the argument as provided in rule 59.

Of course, there is no purpose here to suggest that this rule may not be waived by acts or suspended by consent of the parties. It is desired to make it clear, however, that the plaintiff has not the right to waive the rule and require the defendant to open while reserving the right to himself to close. If he wishes to close, he must also open.

As to the fourth and fifth exceptions, I concur in the opinion of Mr. Justice Cothran. Great latitude is necessarily allowed lawyers in argument, and while the practice followed by many gentlemen of the bar or avowing their personal belief in the good faith of their client and the justice of their cause, and by the opposing counsel of denouncing their client's adversary and asserting the utter absence of right in him, is not to be commended, I do not think that the Solicitor in this case so far exceeded legitimate argument as to entitle the defendant to a new trial for that reason. Such declarations do not constitute argument, but due allowance should be made in the circumstances for the zeal of an attorney making an argument before a jury. It is recognized, however, that a case may arise where a different result should be reached.

As to the ninth exception, I dissent from each of the opinions heretofore filed. It should be noted that the defendant's main defense was that he did not know that the jugs mentioned in the evidence contained liquor. While the jury was not obliged to accept this testimony, it nevertheless related to an essential element of the offense charged. When the presiding Judge, therefore, said "there is no evidence here of that," he rejected in the hearing and presence of the jury the evidence furnished by the defendant himself as to his knowledge of the contents of the jugs. Although his Honor's remark was probably an inadvertence, it was nevertheless prejudicial.

The judgment should be reversed, and the case remanded to the Circuit Court for a new trial.

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Dissenting Opinion

I do not at all agree to the proposition that the party who is entitled to the opening and reply in argument is required by rule 59 of the Circuit Court to advance in opening every reason that his mind may suggest to convince the Court or jury of the fact he desires to establish, at the risk of being denied the right to urge them in reply.

An experience of over 40 years at the bar convinces me that the universal interpretation of this rule confines it to propositions of law, and that it is not applicable to arguments of facts from the evidence; and if it should be considered that such an interpretation is not warranted by the terms of the rule, I should unhesitatingly declare that to the extent indicated in the opinion of Mr. Justice Fraser the rule is void as obstructive to the administration of justice.

The penalty imposed by the rule for not disclosing "his entire case" in opening is conclusive that matters of law and not of fact were referred to: "And on his closing shall be confined strictly to the points and authorities cited by the opposite party"

In the case at bar there was no contest over the law; the issues were of fact alone; the evidence before the Court was susceptible of the guilt or innocence of the accused; it was both direct and circumstantial, and a person of reasonable intelligence is obliged to have been aware of the contention of the State.

It was clearly within the discretion of the Court to allow the Solicitor to waive the opening argument, which could have contained no disputed question of law, and reserve his fire upon issues of fact to the reply.

The ground of objection to the remarks of the Solicitor is too trivial to demand a reversal.

MR. JUSTICE MARION concurs.