City of Greenville v. Chapman

• Decision Date: 07 March 1947
• Docket Number: 15922.
• Citation: 41 S.E.2d 865,210 S.C. 157
• Parties: CITY OF GREENVILLE v. CHAPMAN.
• Court: South Carolina Supreme Court

41 S.E.2d 865

210 S.C. 157

CITY OF GREENVILLE v. CHAPMAN.

No. 15922.

Supreme Court of South Carolina

March 7, 1947

J. G. Leatherwood, W. E. Bowen, and Ray R Williams, all of Greenville, for appellant.

A C. Mann, of Greenville, for respondent.

FISHBURNE Justice.

The defendant was tried before the city recorder on twenty-three counts, for adulteration of milk, in violation of Sections 198 and 225 of the ordinances of the city of Greenville. The warrant charged the offenses as having been committed on different dates between February 10, 1944, and September 20, 1945. Five of the counts were abandoned, and the jury returned a general verdict of guilty on eighteen counts. Following his conviction, the defendant was sentenced by the recorder to pay a fine of $50 or serve thirty days imprisonment in each case.

Before the trial was entered upon, counsel for the defendant moved to require the city to elect upon which one of the various charges or counts set out in the warrant it would rely for a conviction. The motion was overruled, the recorder holding that the city was not required to make an election, but that the cases could be tried together. Upon appeal to the circuit court the judgment of conviction was affirmed.

The sole question presented by this appeal arises out of the ruling of the city recorder, that is, should the recorder have required the city to elect on which of the several charges it would proceed to trial.

Appellant contends that more than one offense can properly be set forth in an indictment or warrant, but that if they do not grow out of the same transaction, then the proper procedure is to require the prosecuting officer to make an election. It is argued that in the case at bar each offense constituted a separate transaction, hence the action of the recorder denying defendant's motion constituted reversible error.

We have held in many cases that a motion to elect is addressed to the sound discretion of the court. State v Rountree, 80 S.C. 387, 61 S.E. 1072, 22 L.R.A.,N.S., 833; State v. Bouknight, 55 S.C. 353, 33 S.E. 451, 74 Am.St.Rep. 751; State v. Sheppard, 54 S.C. 178, 32 S.E. 146.

There are other cases in this jurisdiction dealing with a joinder in one indictment or warrant of related felonies and misdemeanors, and with reference to the joinder of separate counts charging offenses under the common law and under the statute. State v. Lee, 203 S.C. 536, 28 S.E.2d 402, 149 A.L.R. 1300; State v. Williams, 202 S.C. 408, 25 S.E.2d 288; State v. Woodard, 38 S.C. 353, 17 S.E. 135; State v. Scott, 15 S.C. 434. These cases hold that where offenses are of the same character and spring from the same transaction they may be joined in one indictment, although they involve felonies and misdemeanors, and although one may be a common law offense, and the other a statutory offense.

Appellant seems to rely most strongly, however, upon the case of State v. Lee, 147 S.C. 480, 145 S.E. 285, 286. This case involved two separate counts charging larceny and receiving stolen goods. The court held that no election was required, and stated:

'The rule in this state is that distinct offenses--felonies or misdemeanors--may be charged in separate counts of the same indictment, whether growing out of the same transaction or not. If the several offenses charged do not grow out of the same transaction, then the proper practice is to require the prosecuting officer to elect upon which count he will proceed. But, when several offense charged grow out of the same transaction, then the prosecuting officer is not required to elect, and the court instructs the jury to pass upon the several counts separately, and write their verdict accordingly.'

But in our opinion, none of these decisions quite reach the point presented here. Broadly stated, that point is whether several distinct offenses classified as misdemeanors may be joined in the same indictment or warrant in separate counts and tried at one time, where all of the offenses charged are of the same general nature, growing out of a series of transactions or connected transactions, are committed by the same offender although on different dates, and require the same or similar proof and punishment. Concretely, it is whether a defendant over his protest may be tried before the same jury upon a warrant containing twenty three separate counts charging adulteration of milk in violation of a city ordinance, delivered at different times to the same customer, under contract.

The record shows that appellant, a wholesale milk producer, on February 1, 1944, commenced the delivery of 400 gallons of milk per day under his contract with Pet Dairies, to its plant in the city of Greenville. Deliveries were made in ten-gallon cans, transported by appellant's truck to Pet Dairies, where it was bottled and sold to the latter's retail customers in and about the city.

All of the offenses charged in the warrant were identical in character, each directly related to the adulteration of milk by the addition of water, and the sale thereof on the dates mentioned in the warrant, and these charges were supported by evidence given by the same witnesses.

The circuit court held that 'while the various counts cannot be deemed as arising out of the same transaction in the narrow sense of that phrase, they do arise out of a series of identical transactions, their respective dates constituting the only difference between them.' And ...