State v. Bradley
| Decision Date | 21 February 1947 |
| Docket Number | 15917. |
| Citation | 41 S.E.2d 608,210 S.C. 75 |
| Parties | STATE v. BRADLEY. |
| Court | South Carolina Supreme Court |
Leon W. Harris, of Anderson, for appellant.
Rufus Fant, Sol, of Anderson, for respondent.
I am in accord with the conclusions of Mr. Chief Justice BAKER that (1) the Court below had jurisdiction to try the offense alleged in the indictment and (2) that there was no error in refusing appellant's motion for a directed verdict of acquittal, but I am unable to agree with the conclusion that a new trial should be granted on account of the admission of the testimony of Tom Cowan. I would overrule all exceptions and affirm the judgment below.
Evidently neither the officers nor the solicitor believed the statement of Cowan, made immediately after the liquor was found, that it was his liquor. It was not referred to in the direct examination of the officers by the solicitor but was brought out by appellant's counsel during his cross-examination of these officers. Nor do I think it was the solicitor's duty to have elicited this fact on direct examination. If the State had used Cowan as a witness in presenting its case in chief and sought to prove by him that it was not his liquor, it would have been the duty of the solicitor to have further brought out the fact that he had previously made a contradictory statement and to have requested the witness to explain the contradiction. But Cowan was not used as a witness at this time. The State was then vouching for the veracity of the officers but not for the truth of a statement made to them by some bystander.
Appellant was the only witness for the defense. She denied that she had any knowledge whatever of there being any liquor in the house or on the premises and stated that she did not see any of the other occupants of the house bring any liquor on the premises. She also testified that Cowan slept in her house at times; that she was there when he came to her home about noon on Saturday and 'he didn't have it (the liquor) when he came there'; that both of them slept in the hall that Saturday night; and that Cowan never left the premises from the time he came until after the officers made the search on the following Sunday morning. After the testimony was concluded for the defense, Tom Cowan was offered as a witness in reply. He denied sleeping in appellant's home on Saturday night, stating that he did not arrive there until about daylight Sunday morning. He was then asked by the solicitor whether or not he carried any liquor to appellant's home. Appellant's counsel objected to this question on the ground that it did not constitute reply testimony. After a lengthy colloquy between the Court and appellant's counsel, the Court overruled the objection and Cowan testified as follows:
'
There was no cross-examination of Cowan. Appellant's counsel did not seek permission of the Court to offer any rebutting testimony in her behalf and expressed no desire to do so. The answer to the first question could not have been prejudicial to appellant because she had testified substantially to the same effect. The second question was not specifically objected to but I shall assume that appellant's counsel intended for his objection to apply to both questions.
Although the quoted testimony by Cowan may not have been strictly in reply, it was a matter largely in the discretion of the trial Judge and his ruling thereabout will not be disturbed except for abuse of this discretion. State v. Williams, 76 S.C. 135, 56 S.E. 783; State v. Burton, 111 S.C. 526, 98 S.E. 856; State v. Simmons, S.C., 38 S.E.2d 705. I am not satisfied that there was abuse of discretion in the instant case. But apart from this, appellant is precluded from raising the question under the following rule laid down in State v. Harmon, 79 S.C. 80, 60 S.E. 230, 231:
Cowan's testimony was not objected to upon the ground that it contradicted the testimony of the officers, nor do I think it necessarily had that effect. He was not asked as to whether he stated to the officers at the time of the search and seizure that it was his liquor. It is not at all certain that on the stand he would have denied making that statement to the officers.
The other exceptions are not of sufficient importance to require an extended discussion. On cross-examination, appellant was asked whether at the time Cowan stated to the officers that it was his liquor, she knew that statement was untrue. Appellant's counsel objected. After some discussion, the objection was overruled. The witness then testified as follows:
'
Assuming that the question objected to was improperly framed, it was permissible to ask the witness whether she knew that it was not Cowan's liquor. Appellant could not have been prejudiced by the ruling of the Court.
The remaining exception grows out of an incident which occurred during the direct examination of appellant. Counsel asked a question but before the witness completed her answer, he proceeded to ask another question. The Court ruled that the witness should be permitted to complete her answer before being asked the next question. Appellant then completed her answer and no restriction was placed on appellant's counsel in further examining her in any particular he desired. There is no merit in this exception. The conduct of a trial in respect to a matter of this kind is left to a large extent to the discretion of the trial judge.
The question of whether the sentence imposed is in excess of that permitted by the statute is not raised by any of the exceptions and, therefore, is not properly before us. I prefer to intimate no opinion thereabout.
This opinion having now been concurred in by a majority of the Court, it is the judgment of this Court that all exceptions be overruled and the judgment below affirmed.
At the September, 1945, term of the Court of General Sessions for Anderson County, the appellant was tried, convicted and sentenced on an indictment which charged the unlawful possession on July 11, 1943, of alcoholic liquors, that is, alcoholic liquors which did not have South Carolina revenue stamps affixed to the container and containers thereof. We parenthetically call attention to the fact that the appellant having been sentenced to 'be confined at hard labor upon the public works of Anderson County, or in the State Penitentiary for a period of six (6) moths,' was sentenced under Section 1848 of the Code, whereas if the conviction is to stand, she must be sentenced in accord with Section 1841 of the Code in that the indictment charged merely ordinary possession and did not charge possession for an unlawful purpose. State v. Pickett, 47 S.C. 101, 25 S.E. 46.
When this case was orally argued, although the issue was not raised by the exceptions, the writer hereof inquired of counsel for the State and the appellant if, at the time this case was tried, the Court of General Sessions had jurisdiction, or if exclusive jurisdiction did not lie in the magistrate's court, in the light of Act No. 211, of the Acts of 1945, 44 St. at Large, p. 337, scheduled to become effective on July 1, 1945, but approved May 7, 1945.
Counsel thereafter agreed that the Court could consider the jurisdictional issue raised; and of course this Court, without the consent of counsel, could have done so ex mero motu.
In the beginning, the writer hereof was of the opinion that the saving clause contained in Section 26 of the Act of 1945 was intended to preserve only the right to prosecute for a violation of the inhibitory statutes against the illegal possession of alcoholic liquors occurring prior to the effective date of the Act of 1945, even in cases where the prosecution had been commenced prior to such effective date, but not actually tried until thereafter. This opinion was based upon logic in that it would be a travesty on justice for a court in one case to have the power, upon a conviction, to sentence a defendant under the provisions of either Section 1841 or Section 1848 because the crime had been committed on a former date, and in another case where the same crime had been committed at a later date, have to hold that it did not have jurisdiction to try the case in that an inferior court had exclusive jurisdiction by reason of the penalty then provided therefor. However, we must bow to the language used, and not undertake to legislate. Section 26 discloses a purpose on the part of the Legislature to keep the Code provisions in force with respect to offenses...
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