State v. Boyd

35 S.C. 269 | S.C. | 1892

The opinion of the court was delivered by

Mr. Justice Pope.

The appellants were separately indicted in the Court of General Sessions for Hampton County, and, by consent, were jointly tried at the June term, 1891, of such court for selling liquor without a license. The jury found the defendants guilty, whereupon Judge Norton sentenced each one to be imprisoned for six months at hard labor in the State penitentiary.

1 An appeal is brought here from such judgment on two-grounds, “First. Because his honor erred in charging the jury ‘that if the witness Dawson should be corroborated by the facts and circumstances testified to by several other witnesses, that sales of liquor were made by these parties, that you are bound, therefore, to believe the witness Dawson, if you have unbiassed judgment,’ whereas it was in evidence that some of the important facts and circumstances testified to occurred after the period when the defendants were charged with selling liquor, and his honor should have charged the jury, that any such corroborating facts or circumstances could have no weight in sustaining Dawson’s testimony.” An examination of the “Case” discloses that the appellants were each engaged in the mercantile business in the unincorporated village of Hardeeville, in Hampton County, during the month of March, 1890, and in June, 1890, the grand jury preferred bills of indictment against them for selling liquor without license. The indictment against the appellant Tatem, charged him with such illegal sale on the 25th day of March, 1890, and that against the appellant Boyd, charged him with the same offence on the 29th day of March, 1890. Four witnesses introduced by the State testified that each of the appellants during the month of March, 1890, openly sold liquors in their respective store houses; that there was no concealment, as bottles and barrels were freely exhibited. In the arguments for appellants in the Circuit Court during the trial before the jury, their counsel urged that the witness Dawson, who alone in his testimony fixed the exact date in the month of March, 1890, when each defendant sold liquor, should not be believed, because he was biassed, being a rival in business with the appellants, or that he was engaged in the illicit sale of whiskey himself. The solicitor contended that such circumstances were not sufficient to discredit his testimony. In the judge’s charge to the jury he placed in contrast the arguments of the defendants’ counsel and of the solicitor in reply thereto as to the effect upon the credibility of a witness where bias on liis part is alleged. By an inspection of the “Case” it is readily seen that the quotation from the judge’s charge to the jury, embodied by the appellants in their first ground of appeal, does not properly represent the judge’s charge to the jury ; it is not even one sentence of the charge, and omits qualifying words in the sentence from which the extract is taken that occur before the words quoted as well as qualifying words that occur afterwards. This court has repeatedly declared that simple justice to a judge requires that the whole charge should be construed together. How much more necessary is it, therefore, that a sentence thereof should be construed as an entirety. We must overrule this ground of appeal.

2 “Second. Because his honor, the presiding judge, erred in that he refused to pass alternative sentence upon the defendants, and because his sentence was not in conformity with the requirements of section 1784 of the General Statutes.”

The precise words of the section in question are as follows: “Any person violating any of the provisions of this chapter shall, upon conviction thereof, be fined in a sum of not less than two hundred dollars, or imprisoned for a term of not less than six months, or both fined and imprisoned, in the discretion of the court trying the case.” * * * It is manifest that the foregoing section left it to the discretion of the Circuit Judge whether he would adjudge that the defendants should pay a fine of not less than $200, or be imprisoned for a term of not less than six months, or both fined and imprisoned.

But the appellants insist that the Circuit Judge should have ordered their imprisonment in the county jail rather than in the State penitentiary at hard labor. Let us see if there is any error here. By reference to the 16th volume of the Statutes at Large of this State, at page 458, it will be found, “That in every case in which imprisonment is provided as the punishment, in whole or in part, for any crime, such imprisonment shall be either in the penitentiary with or without hard labor, or in the county jail with or without hard labor, at the discretion of the Circuit Judge pronouncing the sentence.” This statutory provision is now incorporated in the General Statutes as section 2615. The Circuit Judge was not in error here, and this ground of appeal must be dismissed.

It is the judgment of this court, that the judgment of the Circuit Court, in both of the cases here heard together, be affirmed.