State v. Atkinson
| Decision Date | 12 March 1890 |
| Parties | STATE v. ATKINSON. |
| Court | South Carolina Supreme Court |
Appeal from general sessions circuit court of York county; PRESSERY Judge.
Finley & Brice, for appellant.
Mr McDonald, for the State.
The defendant, having been convicted under an indictment charging that he, "being a physician, unlawfully did give a prescription for spirituous or intoxicating liquors, to-wit one dozen bottles of beer, to one R. Moultrie Bratton, he the said Dennis C. Atkinson, not then and there being in actual, bona fide attendance upon the said R. Moultrie Bratton as a patient," appeals upon numerous grounds set out in the record, which are too long to be inserted here. Indeed, it is scarcely necessary to consider them in detail; for, although numerous, and incumbered with unnecessary statement, they really present but few questions for us to determine, and these we will proceed to consider.
The first and fourth grounds, imputing error to the circuit judge in refusing a motion for continuance, certainly cannot be sustained in the face of an unbroken line of decisions, for a great length of time, that such a motion is addressed to the discretion of the circuit judge.
The second ground alleges error in refusing defendant's motion to quash the indictment upon the ground that it contained two counts, in one of which defendant was charged with unlawfully giving a prescription to one person, and in the other to another person. A conclusive answer to this ground is that the case, as prepared for argument here, does not show that any such motion was made to the circuit judge, or that he made any ruling on that subject. We have so often had occasion to say that this court can consider nothing which does not appear in the case that surely it cannot be necessary at this late day to repeat the reasons for such a determination. We may add, however, that it does appear in the case that before the trial commenced the solicitor entered a nolle prosequi as to the first count; and hence, even if it had appeared that such motion had been made, it certainly could not have been sustained, as the indictment upon which the defendant was tried and convicted really contained but one count. The same remarks apply to the third ground of appeal.
The fifth, tenth, and eleventh grounds impute error to the circuit judge in allowing witnesses to be asked as to the number of prescriptions given by defendant within a specified time, for intoxicating liquors, to various persons, as found on the files of the druggist in whose store the defendant kept his office. It seems to us that such testimony was clearly competent where the real issue was, as in this case, whether the defendant had bona fide given the prescription upon which the indictment was based to the person therein named, as a patient upon whom he was actually attending as a physician, or whether the whole thing was not pretensive, and a mere device to evade the law. If the fact was, as testified to by some of the witnesses, that the defendant had given a very large number of such prescriptions to various persons who happened to be in town on a public occasion, all to be filled at that drug-store, it was certainly very pertinent to the main issue, as to whether the prescription was given in good faith, or with a view to evade the law prohibiting the sale of intoxicating liquors.
The sixth, eighth, and fourteenth grounds seem to impute error to the circuit judge, not in intimating his opinion to the jury in his charge, but in taking the cross-examination of several of the witnesses out of the hands of the solicitor, and conducting it himself in such a way as to prejudice the defendant, as it is alleged. While such a course on the part of a circuit judge is perhaps unusual, and possibly not to be commended, we know of no law which forbids it, and therefore we cannot say that there was any error of law in this respect, and to that we are confined in cases of this kind.
The seventh and ninth grounds allege error in the remark made by the circuit judge to two of the witnesses, that their responses to certain questions, "I don't remember," would not do. Whether such a remark would be appropriate or not depends largely upon the nature of the question to which such a response was made. We can easily conceive of a case in which such a response would so manifestly indicate a purpose on the part of a witness to evade a truthful answer that it might be proper, and certainly not illegal, for the judge to require a more direct answer, just as if a witness should decline to answer at all. But, be this as it may, the mode of conducting a trial must necessarily be left largely to the discretion of the circuit judge; and we cannot say that there was any such abuse of discretion in this case as would warrant this court in interfering.
The twelfth ground is based upon the idea that the testimony of Mr. Hart, when recalled, was not in reply to any testimony adduced by the defense. This is a mistake. Testimony had been offered on the part of the defense, or rather in the cross-examination of defendant's witnesses. The number of prescriptions given by defendant within the time specified had been mentioned, and Mr. Hart was called in reply for the purpose of showing that the number was larger than that mentioned by defendant.
The thirteenth ground relates to...
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