*1 .426 it. 24 Am. rather than defeat to sustain order
tаinty, Jur. also, Stanaland See Divorce md Separation § has the Jamison, (court E. (1980) 268 S. terms of incorporated prop to construe ambiguous power Ballas, Bаllas v. 217 Cal. App. settlement erty agreements); decree clarified 584 (court 31 Cal. Rptr. (1963) by specifying par bank accounts” to “community reference Moore v. Ariz. Moore, App. bank accounts) ticular whether hus determined (court (1969) P. (2d) community property to wife band’s monthly payments due the wife). interest also included payments items case, over which disagreed In instant parties “exclusively” respondent. belonged of personal property the family amended order was within We believe light appropriate court’s jurisdiction construe the no more .than It did of the case. circumstances 15, 1978; it did not modify of November order ambiguous action was con Such perfectly either party. rights its orders. to enforce court’s sistent with the power raised been considered Other issues have are of under Rule 23. dispоsed
Affirmed. SIMPSON, STATE, Carey Eugene Appellant. Respondent, v.
(272 (2d) 431) E.S. *2 Camden, & Speedy, Speedy, W. of Furman George for appellant. McLeod, Gen.
Atty. Daniel R. Asst. G. Gen. Attys. Kay Crowe Funkhouser, Pikе Lindy James An- and Sol. C. ders, Columbia, respondent.
November
Littlejohn, Justice: of
Carey Simpson was found of Eugene guilty possession distribute, with intent to he marijuana We appeals. affirm.
On March 1979 landed a Cessna twin-engine 421 aircraft at the Camden in Kershaw left airport County, in the hands of the plane airport and checked manager into a local motel to spend SLED had night. who agents been monitoring plane’s activity1 an ex- peered through posed window and observed residue floor on the of seats .the airplane. A sеarch warrant was obtained and a small of quantity 2 substance vacuumed from the interior of the craft. Appel- lant was at the A subsequently arrested motel. search inci- contraband, dent to arrest turned no but aeronauti- up notebook, cal a credit cards and maps, passport, other items were recoverеd and later at introduced trial.
The case consisted of direct evidence that appel lant maintained dominion and control over aircraft and morning The craft entered the continental United that with- States customs, clearing appearing out States Air Force on and off the radar screen. United positive to obtain identification was able number plane. grams marijuana At trial the State introduced 3.47 leaf and seeds. recovered,
thus constructive possession Brоwn, 267 S. C. (1976); see, also, Halyard, State S. E. and circumstantial evidence that the had been (1980), used in a A law enforcement drug-smuggling operation3. in the field of opined expеrt smuggling operations large been and unloaded had quantity marijuana transported by from .the craft the telltale residue with remaining. moved for directed verdict on the
Appellant acquittal he no substantial evidence was intended ground presented from the distribute the small plane. recovered quantity Conviction with intent to pоssession distribute does not the amount hinge upon involved. The amount involved in this case meant that the State not could rely upon statutory Inas presumption. *3 evidenсe, much as the offered defendant no the ruling trial and this court must judge depend upon sub mitted the the by State. While evidence is susceptible more inference, than оne reasonable we cannot that it in say is sufficient to a warrant conviction.
It is that in elementary whether the lower determining court should have a motion granted for a directed verdict of .the acquittal, evidence must be viewed in the most fa- light vorable to the State. In State v. Chandler, 267 S. C. 226 S. E. (2d) we said: (1976),
“When a motion a made, directed verdict is the trial is concerned with the judge existence or nonexistence of evidence, not with its weight, and he should not although refuse to the motion grant where the evidence raises that the is suspicion accused it is his duty to submit guilty, the evidence, case to the if there is jury either direct or cir- cumstantial, which tends to the reasonably prove guilt 3 In addition to the found in the and residue etc., recovered, maps, and missing two of the seats were from the interior grass pit there were and propellers. stains marks on the the accused or from which guilt may fairly logically Wheeler, deduced. State 259 S. C. 193 S. E. Jordan, 177 S. E. S. C. (1972); (1970).” On that the court this burden lower appeal showing is bur- erred He has failed appellant. carry upon den, and we hold that the facts made issues for determina- tion not have been ended as a mat- by jury should ter of law the judge. is and the lower conviction sustained
Accordingly, court is
Affirmed. J., and Ness JJ., concur. Harwell,
Lewis, J., dissents. Gregory, (dissenting).
Gregory, Justice:
I respectfully dissent.
issue is
there
whether
exists
evi-
any competent
dence, direct or circumstantial, which
tends to
rеasonably
establish
intent to
appellant’s
distribute
in Ker-
shaw
find none whether our traditional
evi-
“any
dence” standard of
is
review
see State v.
applied,
Halyard,
оr the
(1980),
enunci-
recently
ated
used,
e.,
federal standard of
is
i.
review
whether any
fact,
rational trier of
when
the evidence
viewing
in the light
most favorable to the prosecution, could have found the es-
sential elements
crime
present beyond
reasonable
*4
doubt.
Jackson
See
v. Virginia,
443 U. S.
Ct.
S.
2781,
It can inferred the be from circumstances one at appellant his aircraft, time had in possession, аboard the a large quan- of marijuana. And have no tity with the quarrel further he inference intended to distribute the logical contraband. But when off-loaded the his intent to аppellant distribute came -to fruition and vanished with the contra- band. that occurred we know but there is not, Where simply in it in Kershaw no evidence this record took рlace On the the is conclusive that the contra- evidence contrary, band landed at Camden was of disposed before the aircraft touched The rеcord is barren of evidence airport. to land- down at Kershaw County other any spot prior or that was in at the Camden airport posses- ing more than the 3.47 siоn Kershaw County grams at trial. leaf seeds introduced Even the circumstantial and evidence assuming opinion of a was admissible operation smuggling against appellant, one cannot infer he intended to and dis- reasonably gather tribute the less than one-seventh of an ounce of mari- spilled leaf and seeds and seats juana from aircraft carpet after his marijuana else- having dumped cargo smuggled where. The own witnesses testified such a small amount of residue would not be vaсuumed for distribution by smuggling operatives.
We have held a case consistently must not be submitted to .the where mere jury raises suspicion of guilt. See collected in Cases West’s South Carolina Crimi- Digest, Law, nal at Nos. Key 741(1) (2).
“When a motion for a directed verdict is made the trial is concerned judge with the existence or nonexistence of еvi- dence, not with its It is his weight. to duty submit the case to the if jury, there is either any evidence, direct or circum- tends, stantial which to reasonably of the ac- prove guilt cusеd or from which be guilt may fairly de- logically However, duced. the motion directed verdict should where evidence granted raises suspicion guilt, or is to such as to or permit jury merely conjecture Brown, as to the accused’s speculate guilt.” S. 227 E. (1976). *5 Smith, See also State v. 266 S. E. (1980). In view conviction affirmed my majority today was for the and distribution in рossession Kershaw County of that but unknown speculative quantity which was the much surmise and subject conjecture by is not record without any experts offense took Kershаw but place County it establishes that did not. The clearly appellant may elsewhere, but not in offense Kershaw guilty County. would reverse conviction mari- appеllant’s possession with intent to distribute Kershaw juana BOWEN, Bowe, Moore, Wright, Correan Reola Kellup Ella Ruth L. Moore, Gilmore, Gilmore, Gilmore, L. Walter Carrie B. Lillian Bowen, Murdock, Bowen, Stephanie Dewey Gene Vonnie Boseman Bowen, GREEN, Minister, and Margaret Respondents, Garey Church, Baptist Appellant. Mount Zion 433)
(272 S. E. possession The offense of was not at issue at trial.