State v. Solomon

• Decision Date: 12 April 1965
• Docket Number: No. 18330,18330
• Citation: 14 A.L.R.3d 1277,141 S.E.2d 818,245 S.C. 550
• Court: South Carolina Supreme Court
• Parties: , 14 A.L.R.3d 1277 The STATE, Respondent, v. Aaron SOLOMON, Appellant.

Page 818

141 S.E.2d 818

245 S.C. 550, 14 A.L.R.3d 1277

The STATE, Respondent, v. Aaron SOLOMON, Appellant.

No. 18330.

Supreme Court of South Carolina.

April 12, 1965.

A. Arthur Rosenblum, Charleston, for appellant.

Atty. Gen. Daniel R. McLeod, Asst. Atty. Gen. J. C. Coleman, Asst. Atty. Gen. W. L. Pope, Columbia, for respondent.

LEWIS, Justice.

The defendant, Aaron Solomon, has appealed from a conviction of operating his business, known as the Sam Solomon Company, on Sunday in violation of Act No. 850 of the 1962 Acts of the General Assembly, 52 Stat. 2134. The issues to be decided concern the sufficiency of the indictment under which the defendant was convicted, the constitutionality of the foregoing statute, the validity of a city ordinance which the defendant claimed made the operation of his business on Sunday lawful, and alleged error in the charge to the jury. The defendant does not question the sufficiency of the evidence to sustain his conviction.

The testimony describes the defendant as the manager of the Sam Solomon Company, a large general merchandise store on East Bay Street in Charleston, South Carolina. The store covers about a half city block and carries a large variety of items for sale to the consumer. The defendant is an Orthodox Jew and does not open his business on Saturday. Since adherence to his religious beliefs requires that he observe Saturday as the Sabbath, the defendant claims the right to operate his business on all other days of the week including Sunday. On Sunday, May 13, 1962, the defendant was operating his business 'as usual' and, at the time of the visit of the officers to his store, there were approximately forty to sixty customers present, with eleven clerks and the defendant on duty. Purchases of various articles were being made by the customers, one particular purchase consisting of two baby chairs (described in the indictment as baby strollers), a ladies slip, and a white shirt. As a result of the operation of his business on May 13, 1962, the defendant was indicted for violating the foregoing statute regulating work on Sunday.

Prior to the adoption of the statute in question, the general statutory prohibition in this State against working on Sunday was contained in Section 64-2 of the 1962 Code of Laws, which provided:

'No tradesman, artificer, workman, laborer or other person whatsoever, shall do or exercise any wordly labor, business, or work of his ordinary calling upon Sunday or any part thereof, work of necessity or charity only excepted, and every person of the age of fifteen years or upwards offending in the premises shall, for every such offense, forfeit the sum of one dollar.'

At the 1962 Session of the General Assembly the quoted provisions of Section 64-2 were repealed and, in lieu thereof, a new statute was enacted relating to Sunday work. Act No. 850, supra. In view of the broad attack made by the defendant upon its provisions, this statute, with the section numbers under which it appears in the 1964 Supplement of the 1962 Code of Laws, is set forth in full:

'Section 64-2. Unlawful to work on Sunday.--On the first day of the week, commonly called Sunday, it shall be unlawful for any person to engage in worldly work, labor, business of his ordinary calling or the selling or offering to sell, publicy or privately or by telephone, at retail or at wholesale to the consumer any goods, wares or merchandise or to employ others to engage in work, labor, business or selling or offering to sell any goods, wares or merchandise, excepting work of necessity or charity.

'Section 64-2.1. Exception to Section 64-2.--Section 64-2 shall not apply to the following: The operation of radio or television stations nor to the publication and distribution of newspapers, nor to the sale of newspapers, books and magazines; nor to the sale or delivery of hearing, cooling, refrigerating or motor fuels, oils or gases or the installation of repair parts or accessories for immediate use in connection with motor vehicles, boats, aircrafts or heating, cooling or refrigerating systems; nor to transportation by air, land or water of persons or property; nor to public utilities or sales usual or incidental thereto; nor to the operation of public lodging or eating places (including food caterers) nor to the sale of emergency food needs at open air markets and grocery stores which do not employ more than three persons including the owners or proprietors at any one time; nor to the sale of drugs, medicines, surgical or medical aids, supplies and equipement, or to the sale of cosmetics, toilet articles, or personal health or hygiene supplies and aids; nor to the sale of flowers, plaints, seeds and shrubs; nor to the sale of prepared tobaccos, soft drinks, confections, ice cream, ices, novelties, souvenirs, fish bait or swimwear, nor to any farming operations necessary for the preservation of agricultural commodities.

'Section 64-2.2 Sale of certain items on Sunday prohibited.--The sale or offer to sell of the following items on Sunday is prohibited: Clothing and clothing accessories (except those which qualify as swimwear, novelties, or souvenirs); housewares, china, glassware and kitchenware; home, business and office furnishings and appliances; tools, paints, hardware, building supplies and lumber; jewelry, siverware, watches, clocks, cameras (but not including films, batteries and flashbulbs); luggage, musical instruments, recorders, recordings, radios, television sets, phonographs, record players or so-called hi-fi or sterio sets or equipment; sporting goods (except when sold on premises where sporting events and recreational facilities are permitted); yard or piece goods; automobiles, trucks and trailers. No inference shall arise from the foregoing enumeration that either the sale or the offering for sale on Sunday of items or articles not mentioned is permitted.

'Section 64-2.3. Penalties for violation of Section 64-2.--A violation of any of the provisions of § 64-2 shall be punished by a fine of not less than fifty dollars nor more than two hundred fifty dollars in the case of the first offense, and by a fine of not less than one hundred dollars nor more than five hundred dollars for each and every subsequent offense. Each separate sale, offer or attempt to sell on Sunday, and each Sunday a person is engaged in other work, labor or business in violation of § 64-2, or employs others to be so engaged, shall constitute a separate offense.

'Section 64-2.4. Sunday work declared nuisance; injunction; time off to attend church.--The doing of any worldly work or labor, business of his ordinary calling, or the selling or offering for sale of any goods, wares or merchandise contrary to § 64-2 is declared to be a public nuisance and any State, county or municipal law-enforcement officer may apply to any court of competent jurisdiction for any may obtain an injunction restraining such operation, work, labor, sale or offering for sale. Provided, that any employee in a retail store where there are more than three employees shall upon request of said employee be granted time off to attend service allowing one hour for preparing to go and traveling to church and one hour after service for returning therefrom.

'Section 64-2.5. Sections 64-2 to 64-2.4 shall not be applicable to or affect the carrying on of any business or the rendering of any service which was lawful on April 7, 1962.'

The foregoing statute became effective on April 7, 1962.

At the outset of the trial the defendant moved unsuccessfully to quash the indictment upon the ground that it was insufficient to fully inform him of the nature and cause of the accusation against him, in violation of Article 1, Section 18, of the South Carolina Constitution and the Due Process Clause of the Fourteenth Amendment of the United States Constitution. The defendant contends that the indictment was fatally deficient in that it (1) failed to negate all of the specific exceptions enumerated in Sections 64-2.1 and 64-2.2 of the statute and (2) did not set forth the particular items allegedly sold or offered for sale nor the name of the consumer to whom the sale or offer to sell was made.

It is well settled that an indictment is sufficient if the offense is stated with sufficient certainty and particularity to enable the court to know what judgment to pronounce, the defendant to know what he is called upon to answer, and an acquittal or conviction may be pleaded in bar to any subsequent prosecution. State v. McIntire et al., 221 S.C. 504, 71 S.E.2d 410.

The offenses under the Sunday closing law are created and defined by Section 64-2. Three separate offenses are created: (1) engaging in worldly work, labor, or business of one's ordinary calling on Sunday; (2) selling or offering to sell, publicly or privately or by telephone, at retail or wholesale to the consumer any goods, wares or merchandise on Sunday; (3) employing others to engage in work, labor, business or selling or offering to sell any goods, weres or merchandise on Sunday. This section excepts 'work of necessity or charity' from the foregoing prohibitions, and is followed by Section 64-2.1 and 64-2.2 which contain a list of permitted activities and sales and a list of merchandise specifically prohibited from sale on Sunday.

The indictment in this case contained two counts. The first charged that the defendant unlawfully engaged on May 13th, 1962, the first day of the week, in worldly work, labor and business of his ordinary calling, not constituting work of necessity or charity, by selling to consumers, at retail or wholesale, goods, wares and merchandise which are not permitted to be sold on the 1st day of the week, in violation of Section 64-2 of the 1962 Code of Laws, as amended.

The second count of the indictment charged that the defendant unlawfully engaged on May 13th, 1962, the first day of the week, in worldly work, labor, and business of his ordinary calling, not a...