71 S.E. 987 | S.C. | 1911
July 14, 1911. The opinion of the Court was delivered by
This case was submitted at the November term, 1910. The appeal was dismissed without consideration, of the merits, because appellant's attorney filed no argument.
The appeal was heard on the following agreed statement of facts: "That the defendant, W.P. Kelly, was tried on June 30, 1910, for selling whiskey on October 15, 1909; and was tried on July 1, 1910, for selling whiskey on June 23, 1910; the dates of the alleged sales being set out in the indictments, as above. There was a variance as to the date alleged in the indictment alleging October 15, 1909. The defendant was given an alternative sentence in the case tried June 30, 1910; and was sentenced in the case tried July 1, 1910, to one year's imprisonment, this offense being treated as the second or subsequent offense under the act of 1909, 26 Stat., page 64. It is admitted that the counsel for the defendant contended in each case that, by reason of the act of 1909, the date of sale was material, and that it must be proved, and that the date of sale determined the second or subsequent offense, and not the trial of the offense. The trial Judge held to the contrary. It is further agreed that, *305 during the trial, commenced June 30, 1910, the following occurred:
"Mr. Clifton (during argument by the solicitor): We object to what the grand jury did. That is a one-sided investigation.
"The Court: The fact remains that the grand jury presented him.
"Mr. Clifton: We object to discussing what the grand jury did in the matter, because the defendant had no opportunity of meeting the witnesses there. We are willing to meet them all before this jury.
"Solicitor: I say the grand jury have done their duty, and the question is now up to you to decide.
"It is agreed that the two cases against the defendant, Kelly, are to be heard on appeal together. It is further agreed that sentence in each case was pronounced on the same day, July 9, 1910, and that there was no allegation in either indictment that the offense therein referred to was a first, second or subsequent offense, and that this objection was made by defendant's counsel before sentence."
Section 11 of the act of 1909 reads as follows: "Any person who violates any of the provisions of this act shall be guilty of a misdemeanor, and, upon conviction thereof, be fined in a sum not less than one hundred dollars nor more than five hundred dollars, or imprisoned at hard labor for a period of not less than three months nor for more than one year; and for the second or any subsequent offense, upon conviction thereof, shall be imprisoned at hard labor for not less than one year nor more than five years."
To prevent confusion, we will dispose of the two cases separately.
In this State, each sale of whiskey is a separate and distinct offense for which the guilty party may be convicted and punished. State v. Cassety, 1 Rich. 90; State v. Anderson, 3 Rich. 172; State v. Steedman, 8 Rich. 312. Therefore, when two or more offenses of the same character are alleged in different indictments, whether they are the same or different offenses may become a question of fact, to be tried by a jury, if demanded. State v.Dewees,
The second exception complains of error and prejudice in the ruling of the Court as to the remarks of the solicitor during his argument. We see nothing in either which could have prejudiced appellant's case.
The third exception assigns error in imposing the punishment provided by the statute for a second or subsequent offense in this case, when there was no allegation in the indictment that it was a second or subsequent offense, and no proof of that fact. It is not necessary that the indictment should contain such an allegation.State v. Parris, infra 140. The record of the former conviction was before the Court, and the defendant having been convicted for both offenses before the same Judge, no further proof was necessary.
Affirmed. *308