140 S.E. 251 | S.C. | 1927
Lead Opinion
November 4, 1927. The opinion of the Court was delivered by This is an appeal from the Court of General Sessions for Dorchester County. At the October, 1926, term of said Court, the appellant, a white man, and Dave Boyd, Negro, were tried jointly before J. Henry Johnson, presiding Judge, and a jury, upon an indictment charging them, under separate counts, with violations of the prohibition law, one of such counts charging "storing" by appellant and his co-defendant, the other charging them with "having alcoholic liquors in possession for unlawful purposes."
The jury having returned a verdict of guilty as to both defendants, they were duly sentenced by the Court, and, from such sentence and judgment the defendant, Louis Smoak, alone, appeals.
There are five exceptions. Exceptions 3 and 4 were abandoned at the hearing.
Exception 1 is overruled, as it was within the discretion of his Honor, and he did not erroneously exercise that discretion.
Exception 2 is as follows: It was error for the Court to have charged: "The State, as I understand it, has a charge against Louis Smoak, in effect, that he stored whiskey at the home of David Boyd, and that David Boyd continued to store it for him," when the indictment simply charged Louis Smoak and David Boyd jointly with having whiskey in their possession and storing the same, and to so have charged was a charge upon the facts of the case, and had the effect of conveying to the jury the Court's opinion of the facts, to the effect that Louis Smoak, the appellant, took whiskey to the home of *41 David Boyd, and David Boyd stored, and continued to store, the whiskey for the appellant, as David Boyd had thus testified. This exception must be sustained as a charge on the facts, as his Honor must have got his information from the testimony. The indictment did not charge that the liquor was stored in the house of David Boyd, but Boyd testified to that.
Exception 5 is overruled, as his Honor did not confuse the jury as to the form of the verdict. The second exception is sustained, and a new trial granted.
MESSRS. JUSTICES COTHRAN, BLEASE, STABLER, and CARTER concur in result.
Concurrence Opinion
I concur upon the ground that the charge was equivalent to "stating the testimony." I do not think that it can be construed as conveying to the jury the Court's opinion as to the effect of the evidence.
Concurrence Opinion
I agree in the conclusion of the Chief Justice that there should be a reversal and new trial in this case, but I do not concur in the reasons given therefor in his opinion. I think the second exception, which is sustained by the Chief Justice, should be overruled, and that the fifth exception, which is overruled in his opinion, should be sustained.
The language of the Circuit Judge, quoted in the opinion of the Chief Justice, and held by him to be a charge on the facts, came in response to a statement made by the defendants' counsel, while the Judge was instructing the jury as to the law of the case. The appellant and Boyd were jointly indicted. The theory of the State's case was that the appellant, who owned the whiskey, carried the same to Boyd's home, and left it there for safe-keeping. At the time the *42 Court used the language complained of, the Judge was replying to a statement of defendants' counsel, and was also explaining to the jury the difference between actual and constructive possession. I do not think the words of the Judge gave any intimation as to his impression of the evidence, or that the words resulted in stating what the testimony was, as suggested by Mr. Justice Cothran.
In my opinion, there was serious error on the part of the trial Judge in using certain language, which I have italicized, when he instructed as to the several verdicts which might be returned. The charge, as to the verdicts which could be rendered, was as follows:
"It is within your province to return a verdict of guilty, which would mean guilty as to both defendants on both counts; that is, for having in possession and for storing. Second, it is within your province to return a verdict of guilty as to one of the defendants, and not guilty as to the other defendant; or guilty as to one of the defendants on both counts of the indictment, and not guilty as to the other defendant on both counts of the indictment, or not guilty as to one of the defendants on one count of the indictment and guilty as to the same defendant on the other count in the indictment, or vice versa as to the other defendant; infact, there are so many forms of verdicts which you couldreturn that I shall not attempt to define them all to you. Icould hardly tell you how many different forms of verdictsyou could return. It is also within your province to return a verdict of not guilty as to either or both of the defendants on one or both counts of the indictment, according as you view the testimony."
The italicized language is imputed to be error in the appellant's fifth exception.
An indictment for violation of the prohibition law, as used in this State, contains quite a number of blank counts, which the solicitors usually fill out to meet the requirements of the particular case. In many instances, to be sure that *43 they cover all the misdemeanors which may be charged against the defendant, they fill out all of these blank counts. The instrument is really a "drag net" indictment. It is the duty of a trial Judge to properly inform a jury as to all verdicts which may be returned, according to the evidence adduced in the trial. In the case at bar, the only counts in the indictment depended upon by the Solicitor against the defendants were those of receiving and having in possession, and storing; and the evidence bore only upon those two counts. When the Court told the jury that "there are so many forms of verdicts which you could return," and used the other language in connection therewith, pointed out above, he may have impressed the jury with the idea that, even if the defendants were not guilty of the two offenses charged against them, they could still be found guilty on other charges; or, as the defendants were charged with so many crimes, that they ought to be convicted of the two especially referred to by the Judge. If there were other "forms of verdicts," in addition to those mentioned by the Judge, which the jury could have rendered, then it was clearly the duty of the Circuit Judge to tell the jury what those verdicts were.
MR. JUSTICE CARTER concurs.
