State v. Beckroge

Jul 1, 1897

Reporters:: , ,
Before:: Pope

The opinion of the Court was delivered by

Mr. Justice Pope.

In the above entitled causes, tried *486in the Ccmrt of General Sessions for Charleston County, in this State, at the June term, 1896, of said Court, before Judge Earle and a jury, each defendant was found guilty of maintaining a nuisance, under what is known as the dispensary law of this State, and after conviction were duly sentenced. Thereupon each one of the three defendants above named, and each in his own cause, appealed to this Court. A copy of the indictment and the exceptions thereto must be set out in ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍the report.

As will appear by the indictment, it contained two counts — one for selling intoxicating liquors, and one for keeping a place where persons were permitted to resort for the purpose of drinking intoxicating liquors. The only questions raised by each appellant are that the Circuit Judge erred in refusing to quash the indictment. The grounds of such motion were, in brief: First. Because the indictment in each cause was bad, in that it improperly contained three counts, each of which set out a distinct offense. Second. Because of duplicity in the indictment, for that three offenses were charged in the same count.

1 It should be here stated that the grand jury found a true bill generally on the indictment against J. H. Beckroge, but in each of the cases against E. Perano and Bertucci, a true bill on the second count. Thus it appears, except in Beckroge’s case, the indictment practically contained but one count, which would make the appeals of Perano and Bertucci present an immaterial point, so far as the first ground of appeal is concerned, but not so as to Beckroge. Both of the counts in the indictment charge but misdemeanors under our laws. ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍The power to include distinct offenses of different grades — felony on the one hand, and misdemeanor on the other hand — has been recognized by this State in a long line of cases, among which may be mentioned State v. Nelson, 14 Rich., 172; State v. Scott, 15 S. C., 434; State v. Norton, 28 S. C., 576; State v. Woodard, 38 S. C., 353. In the case last quoted, it is said: “This is no new question in our courts. In State v. Nelson, 14 Rich., *487172, Mr. Justice Inglis, as the organ of the Court, said: ‘If really distinct felonies be charged in separate counts of an indictment, no objection, in point of law, can be made.’ So, also, in State v. Scott, 15 S. C., 435, Mr. Justice Mclver, in referring to this matter, said: ‘The rule upon this subject seems to be that there is no valid objection to the joinder of several distinct felonies in the same indictment, and that such joinder constitutes no ground for demurrer or motion in arrest of judgment.’ The same conclusion was reached in the case of State v. Norton, 28 S. C., 576. The effect of a review in the same indictment of several counts for distinct offenses is different when such offenses grow out of ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍the same transaction, and when such offenses have no connection the one with the other. In the first class, our courts have held that it was the duty of the Judges on Circuit to instruct the jury as to the effect of a general verdict of guilty, which is understood to carry the highest offense alleged, if there is testimony to support it, so that the jury may shape their verdict so as to conform to their real convictions by finding upon each count separately. In the second class of cases, it is the duty of the presiding Judge, without waiting for a. motion to that end from the defendant, to order the prosecuting officer to elect upon what charge he will confine the trial.” The first ground of appeal is overruled.

2 We will next consider the second ground of appeal. We must overrule this also, as not well taken. The 22d section of what is known as the dispensary law provides: “All places where alcoholic liquors are sold, bartered or given away, in violation of this act, or where persons are permitted to resort for the purpose of drinking alcoholic liquors as a beverage, or where alcoholic liquors are kept for ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍sale, barter or delivery, in violation of this act, are hereby declared to be common nuisances * * It is very clear that either the sales, &c., of alcoholic liquors, or providing a place where alcoholic liquors are drunk, or keeping a place where alcoholic liquors as a beverage are *488kept, &c., would render a person so offending in either one of the three ways here denounced by law, guilty of the offense of a common nuisance. If a man is guilty of one of these three offenses, his crime is as complete as if guilty of the whole three, and vice versa. All that the indictment is intended to do is to provide the person offending with a statement of the offense for which he is to be tried. The offense is a common nuisance, and in this count he is put upon full notice. It has been held in this State, that while two distinct offenses cannot be included in the same count of the indictment, yet that it is not duplicitous when, in the same count, two offenses are set out, if one includes the other or others. State v. Tidwell, 5 Strob., 10. A familiar instance is that of an indictment for forgery. See the form ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍of indictment as to the counts thereof in the case of The State v. Washington, 1 Bay, 120. It will be observed in the case at bar, the count does not charge the three forms of common nuisance in the disjunctive, but in the conjunctive. It is not ‘■‘•or” but 11 and.” See, also, 2 Bish. Cr. Pro. (3d edition), section 867.

It is the judgment of this Court, that the judgment of the Circuit Court in each of the three cases hereinbefore named be affirmed, and that the said three cases be remanded to the Circuit Court for the enforcement of the judgment of that’ Court.