State v. Burns

• Decision Date: 01 December 1925
• Docket Number: 11872.
• Citation: 130 S.E. 641,133 S.C. 238
• Parties: STATE v. BURNS ET UX.
• Court: South Carolina Supreme Court

130 S.E. 641

133 S.C. 238

STATE v. BURNS ET UX.

No. 11872.

Supreme Court of South Carolina

December 1, 1925

Appeal from General Sessions Circuit Court of Greenville County Hayne F. Rice, Judge.

J. A Burns and wife were convicted of willfully and unlawfully storing and keeping contraband liquors, and they appeal. Reversed, and new trial ordered.

Purdy A. A. J., dissenting.

Dean, Cothran & Wyche, of Greenville, for appellants.

J. G. Leatherwood, Sol., of Greenville, for the State.

MARION J.

The defendant J. A. Burns, and his wife, Minnie Burns, were tried jointly upon an indictment containing five counts, of which three--charging that the defendants (1) "did willfully and unlawfully receive and accept for unlawful use" contraband liquors, (2) "did willfully and unlawfully receive, accept, and have in their possession" contraband liquors, and (3) "did willfully and unlawfully store and keep" contraband liquors --were submitted to the jury. They were convicted upon the one count which is last enumerated--that charging them with "storing and keeping." The defendants have appealed upon exceptions which make the three contentions: (1) That the evidence was insufficient to convict of the offense charged; (2) that under the evidential facts both the husband and the wife could not as a matter of law be found guilty; and (3) that the trial judge charged upon the facts.

The evidence adduced by the state tended to establish the following facts: Three or four officers of the law went to the defendants' residence for the purpose of making a search. They had a search warrant. Mrs. Burns was seen just outside the front door, talking to a man. The sheriff said, "We have got a warrant for you." Mrs. Burns jumped inside the door and slammed it. The officers ran to the house and found both the front and the back door locked. They proceeded to break in. When the officer at the back door had broken out a panel, he saw Mrs. Burns at the kitchen sink with a pitcher pouring something out of it. She then put the pitcher on the table. The officer then entered and followed Mrs. Burns toward the front of the house. As he got in the next room, Mr. Burns came from the side with a double-barreled, "sawed-off shotgun." Burns claimed to have been asleep, had that appearance, and the bed looked as if he had just gotten out of it. The back-door officer disarmed Burns. He then went back to the kitchen and found a colored girl, 8 or 10 years old, with the pitcher in her hand. There were 4 or 5 ounces of disinfectant in the pitcher. She had a glass in which there was some disinfectant. The pitcher smelled of corn whisky, and the kitchen sink smelled of corn whisky. In a kitchen cabinet was found a pint bottle with about a couple of inches of corn whisky in it. The pitcher was a gallon pitcher. The evidence tending to establish the foregoing facts, if believed, was sufficient to support the inferences: (1) That the defendant Mrs. Burns made an effort to delay the entrance of the officers into her house; (2) that this delay was utilized for the purpose of pouring out whisky from a gallon pitcher; (3) that an effort had been made to conceal the character of the former contents of the pitcher by putting disinfectant therein; (4) and that there had been more than a quart of whisky in the house when the officers started the raid; and (5) that both Mr. and Mrs. Burns knew of the whisky in the house and were parties to the act of having and keeping it there.

As to appellants' first contention that there was no evidence to support a finding of unlawful storing and keeping: That contention, as we understand it, is predicated largely, if not wholly, upon the meaning of the terms "storing" and "keeping in possession" as defined in certain of our previous decisions. In Town Council of Easley v. Pegg, 63 S.C. 98, 41 S.E. 18, this court said:

"We think the offense of storing and keeping in possession of contraband liquors involves more than the mere having in possession of such liquors. 'Storing' means, as stated in the request, the laying away for future use; keeping in possession means to have habitually in possession. The Century Dictionary gives among the definitions of 'keep' the following: '8. To have habitually in stock or for sale. 9. To have habitually in attendance or use. * * * 19. To maintain habitually.' The offense of storing and keeping in possession contraband liquors involves the idea of continuity or habit."

The foregoing definition of the words "storing" and "keeping in possession" was followed and approved in the cases of State v. Green, 89 S.C. 132, 71 S.E. 847, Newberry v. Dorrah, 105 S.C. 28, 89 S.E. 402, and State v. Bradley, 109 S.C. 411, 96 S.E. 142. It may be conceded, therefore, that the "storing and keeping in possession" of contraband liquor "involves more than the mere having in possession of such liquors," and that "storing" means "the laying away for future use," and that "keeping in possession" means "to have habitually in possession." While the count of the indictment under which defendants were convicted charged that they did "unlawfully store and keep in his house," etc., by the terms of sections 820, 860, and 873 of the Criminal Code (1922), the act of storing is a separate and distinct offense from the act of keeping in possession (section 820) or the keeping or having in possession (section 860), or the keeping (section 873). If so, it would seem clear without argumentative discussion that facts sufficient to warrant a finding that the defendants were guilty of storing, whether sufficient or not to establish the offense of keeping (to the extent such "keeping" might involve any other or additional element of habit not included in storing), would support a conviction under this count. Limiting the inquiry, therefore, to whether there was any evidence of storing, in the sense of "laying away for future use," the precise question presented is whether the facts that the defendants had in their place of residence as much (inferentially) as a gallon of corn whisky, contained in a pitcher and a pint bottle, are sufficient to support the inference or finding that this whisky was "laid away for future use." Appellants argue that the evidence to the effect that Mrs. Burns "had whisky in a pitcher, and that it was poured from the pitcher into the sink when the officers appeared, the whisky being in the pitcher would be proof that it was for immediate consumption rather than that it was being stored for future use," etc. If the whisky in the gallon pitcher was not in the house for future use, the only reasonable alternative inference is that it was there for immediate use. The only persons in the house were Mr. and Mrs. Burns, their daughter, and the small negro girl. No convivial social function appears to have been in progress, and there is no suggestion that any member of the household was "drunk or drinking." There is no evidence as to when the liquor had been obtained or as to a mere temporary possession, as in State v. Freeman, 107 S.C. 431, 93 S.E. 13, and in Newberry v. Dorrah, 105 S.C. 28, 89 S.E. 402. Indulgence of the inference that all of the whisky in the house was intended for such immediate personal use, as would preclude the idea of a future use extending over a considerable period of time would not seem to be required either from the viewpoint of charity or from that of reason. Certainly, in the circumstances indicated, certain of which tended to show an effort to conceal the facts as to the presence of the whisky, its quantity, etc. (33 C.J. 756, § 498), the inference that the whisky was intended for immediate use or consumption, rather than that it was "laid (put or placed in position, Cent. Dict.) away for future use," is not the only inference of which the evidence is reasonably susceptible. See State v. Tooley, 107 S.C. 408, 93 S.E. 132; State v. Twiggs, 123 S.C. 47, 101 S.E. 663; State v. Fant, 88 S.C. 493, 70 S.E. 1027; State v. Drakeford, 120 S.C. 400, 113 S.E. 307. In that view, the contention that there was no evidence of storing in the sense contemplated by the statute law of the state, and the exceptions directed thereto (1, 5, and 6), must be overruled.

The appellants' second proposition (exceptions 2 and 3), that the facts were insufficient to warrant, as a matter of law, a finding that both the husband and wife were guilty of the offense of storing or keeping, is, we think, likewise untenable. The law applicable is sufficiently fully stated in the case of State v. Houston, 29 S.C. 108, 112, 6 S.E. 943, 944 (Simpson, C.J.), as follows:

"The general rule upon this subject is, that when the wife acts under actual constraint imposed by the husband, she will be relieved from legal guilt, if the act is committed in his presence, with the exception possibly in some cases of the higher crimes. 2nd. Where she acts in the presence of her husband, she is presumed to have acted prima facie through his coercion, but still this is only prima facie, and may be rebutted by testimony. Bish. Cr. Law (7th Ed.) § 385 et seq. Hence the question of her guilt is in most cases a question of fact for the jury, under the principles of law above

...