State v. Browning

• Citation: 151 S.E. 233
• Decision Date: 14 January 1930
• Docket Number: (No. 12807.)
• Parties: STATE. v. BROWNING.
• Court: United States State Supreme Court of South Carolina

151 S.E. 233

STATE.
v.
BROWNING.

(No. 12807.)

Supreme Court of South Carolina.

Jan. 14, 1930.

Stabler and Carter, JJ. dissenting.

Appeal from Orangeburg County Court; B. H. Moss, Judge.

George W. Browning was convicted of the unlawful receipt and having in his possession of certain alcoholic liquors, and he appeals. Reversed and remanded.

Brantley & Zeigler, of Orangeburg, for appellant.

N. B. Smith, Co. Sol., of Orangeburg, for the State.

BLEASE, J. The appellant was tried in the county court of Orangeburg county on an indictment which contained two counts: (1) The storing of certain alcoholic liquors, and (2) the unlawful receipt and having in his possession of certain alcoholic liquors. He was convicted on the second charge, and appeals to this court

Error is imputed to the county judge for his refusal to require the state to elect on which of the two counts the trial would be had. The ruling of the judge was correct, as will be shown by the decision in the case of State v. Harrell, 142 S. C. 17, 140 S. E. 256, and the cases therein cited.

The state was allowed, over the objection of the appellant, to introduce in evidence, through the clerk of the court of the county, an indictment against the appellant for some violation of the laws, as to intoxicating liquors at a time previous to the date of the offenses alleged against the appellant in the case at bar, to which indictment the appellant pleaded guilty, and for which offense there charged he was fined, and which fine he paid. The allowance of the introduction of this paper is here questioned by the appellant, and, in our opinion, the exception making the question should be sustained.

[151 S.E. 234]

The general rule seems to be that evidence of another distinct offense, not connected with the crime charged, is not admissible in a prosecution for the violation of a liquor law; but there are many exceptions to this rule, and the courts are at variance in their decisions on this subject. See 16 C. J. 605.

The county judge seems to have based his ruling upon the authority of the case of the State v. Quick, 141 S. C. 442, 140 S. E. 9T. We think he was misled by the second syllabus of the case as reported. That syllabus is as follows: "Admitting state's testimony of rural policeman as to former search of defendant's premises at time not alleged in indictment, and finding whisky thereon, held competent on charge of storing, where it was shown defendant had pleaded guilty to former offense and paid fine." (Emphasis added.)

A hasty reading of the syllabus might cause the reader to think that it was decided by this court that in the trial of a person for violation of the liquor laws, the state might show that the defendant had formerly pleaded guilty to some offense against those laws and had paid the fine imposed therefor. A reading of the decision will show, however, that such was not the holding in that ease. The state was allowed to show the finding of whisky on the premises of the defendant at a time not alleged in the indictment, and this court upheld that ruling. The appellant in that case claimed that the testimony of the officer who had made the former search was incompetent, since he had pleaded guilty to the former offense, and had paid the fine imposed upon him for it. We held the evidence offered by the state competent on the charge of "storing" in face of the showing made by the defendant. We did not say that the state could introduce the record of the former conviction, and the state did not even offer that record. Proof of the former conviction was offered by. the defendant.

Perhaps, we did not say enough in the Quick Case; the fault, if any, being attributable to the writer of this opinion, who spoke for the court in that case. What we intended to hold there, and do now hold, is that when one is charged with the storing of contraband liquors on his premises, the state may offer evidence going to show that at some former time, not too remote, the defendant had contraband liquors at the same premises. The purpose of allowing testimony of this kind is to establish "continuity" or "habit, " which is a necessary element in the crime of "storing" as laid down by the previous decisions of this court. See State v. Rums, 133 S. C. 238, 130 S. E. 641, 644, and cases there cited.

We do not think it was proper to allow the state to introduce the record of the appel lant's conviction, or rather his plea of guilt. In State v. Ashley, 128 S. C. 411, 123 S. E. 260, while the defendant was being tried for a...