State v. Chancey
| Decision Date | 26 April 1926 |
| Docket Number | (No. 11965.) |
| Citation | 132 S.E. 824 |
| Parties | STATE. v. CHANCEY. |
| Court | South Carolina Supreme Court |
Appeal from General Sessions Circuit Court of Chester County; C. C. Featherstone, Judge.
J. W. Chancey was convicted of the sale of whisky and of storing and keeping in possession whisky for unlawful use, and he appeals. Reversed and remanded for a new trial.
Hemphill & Hemphill and David Hamilton, all of Chester, for appellant.
J. Lyles Glenn, Jr., Sol., and A. H. Macaulay, both of Chester, for the State.
COTHRAN, J. Indictment containing two counts: (1) A sale of whisky; (2) storing and keeping in possession whisky for unlawful use. Verdict "guilty"; sentence, imprisonment in the penitentiary for 15 months, 5 of which were suspended during good behavior.
We shall consider only the exception which assigns error to the presiding judge in not fully charging the law of alibi.
Speaking for himself alone, the writer of this opinion has an abiding confidence that sooner or later the court will recede from the oft-expressed statement that alibi is an affirmative defense, and that the preponderance of the evidence must be established by the defendant upon this defense. See concurring opinion in the case of State v. DesChamps (S. C.) 131 S. E. 420.
Bowing to the present attitude of the court, I am convinced that the presiding judge did not follow the law as laid down in the case of State v. Stokes (S. C.) 130 S. E. 337, in that he should have charged, along with the statement referred to, in the language of the Stokes Case:
"But this rule is subordinate to the cardinal rule in criminal cases that the burden is unshifting on the part of the state to establish every element of the crime charged beyond a reasonable doubt to warrant a conviction * * * and, if the jury entertain a reasonable doubt on the whole case as to whether the defendant has established his alibi, the defendant is entitled to it."
The judgment of this court is that the judgment of the circuit court be reversed, and that the case be remanded to that court for a new trial.
GARY, C. J., did not participate.
BLEASE, J. I agree with the opinion of Mr. Justice COTHRAN, but I feel that in justice to Judge PEATHERSTONE, who tried the case, that attention should be called to the fact that the trial was had, as it appears from the record, prior to the announcement of the decision in the case of State v. Stokes, cited in Mr. Justice COTHRAN'S opinion.
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