State v. Conally

• Decision Date: 26 July 1955
• Docket Number: No. 17040,17040
• Citation: 88 S.E.2d 591,227 S.C. 507
• Parties: The STATE, Respondent, v. Rufus CONALLY, Appellant.
• Court: South Carolina Supreme Court

Page 591

88 S.E.2d 591

227 S.C. 507

The STATE, Respondent, v. Rufus CONALLY, Appellant.

No. 17040.

Supreme Court of South Carolina.

July 26, 1955.

John M. Schofield, Walhalla, for appellant.

Rufus Fant, Sol., Anderson, for respondent.

LEGGE, Justice.

At the November, 1954, term of the Court of General Sessions for Oconee County, appellant pleaded guilty to the charge, for which he had been indicted, that on July 3, 1954, he 'did wilfully and unlawfully have in his possession alcoholic liquors which did not have the South Carolina revenue stamps affixed to the container and containers thereof, against the form of the statute in such case made and provided * * *.' Before imposing sentence, the presiding judge in open court questioned the defendant and the officers and ascertained the following facts, which are undisputed: that on the date mentioned in the indictment, the officers had gone to appellant's home and there found about a quart of alcoholic liquor in an unstamped half-gallon fruit jar, and also five or six cases of empty fruit jars that smelled of alcohol; that the offense was appellant's second, he having in 1953 paid a fine in a magistrate's court in Oconee County for having illegal liquor in his possession; and that over a period of about five years, appellant had on four occasions paid fines for drunkenness and disorderly conduct. Thereupon appellant was sentenced to be confined upon the public works of Oconee County, or in the State Penitentiary, at hard labor, for a term of eighteen months. From this sentence he appeals, charging, in a single exception that 'the court erred in passing and imposing such severe and excessive sentence; said sentence violating, in view of the facts involved, the constitutional provision against cruel and unusual punishment'.

This court has no jurisdiction to disturb, because of alleged excessiveness, a sentence which is within the limits prescribed by statute, unless: (a) the statute itself violates the constitutional injunction, Article I, § 19, against cruel and unusual punishment, or (b) the sentence is the result of partiality, prejudice, oppression, or corrupt motive. State v. Scates, 212 S.C. 150, 46 S.E.2d 693; State v. Kimbrough, 212 S.C. 348, 46 S.E.2d 273; State v. Huffstetler, 213 S.C. 319, 49 S.E.2d 585; State v. Phillips, 215 S.C. 314, 54 S.E.2d 901; State v. Goodall, 221 S.C. 175, 69 S.E.2d 915; State v. Hall, 224 S.C. 546, 80 S.E.2d 239.

In the instant case, the constitutionality of the statute is not questioned, nor does appellant charge partiality, prejudice, oppression, or corrupt motive. If, therefore, the sentence was within the limits prescribed by the statute under which appellant was indicted, his appeal must fail. It may be doubted that his exception properly raises the issue of whether or not the sentence imposed upon him exceeded the maximum prescribed for his offense by the statute under which he was indicted; but, resolving such doubt in his favor, we proceed to consideration of that issue.

Section 14 of the Alcoholic Beverage Control Act of 1945, Act No. 211, XLIV Stat. at Large 337, reads as follows:

'Section 14:

'(a) It shall be unlawful for any person to manufacture, store, keep, receive, have in possession, transport, ship, buy, sell, barter, exchange or deliver any alcoholic liquors except in accordance with the provisions of this Act, except liquors acquired in a legal manner.

'(b) It shall be unlawful for any person to purchase, or otherwise procure, within this State any alcoholic liquor other than that purchased from licensed dealers within the State as provided for in this article, and any person found in possession of any bottle or other package containing alcoholic liquor without having affixed the revenue stamps thereto, either or both, shall be guilty of a misdemeanor.

'(c) It shall be unlawful for any person to store, or have in possession any alcoholic liquors in his, her or its place of business other than a licensed liquor store. A place of business shall be, and include, any place where goods, wares, or merchandise are sold or offered for sale, or distributed, and also places of amusement. A place of business shall also include residences and transportation vehicles when sale of any merchandise is made therefrom. A place of business shall also include outbuildings, warehouses and garages, when adjacent to or used in connection with any place of business where any goods, wares or merchandise are sold, or offered for sale, or distributed therefrom.

'(d) It shall be unlawful for any person under the age of 21 years to work as an employee or otherwise in a retail, wholesale or manufacturing liquor business or business establishment, and it shall be unlawful for any person knowingly to employ any person under the age of 21 years in any such business or business establishment.

'(e) It shall be unlawful for any person to drink alcoholic liquors on the premises of any retail, wholesale or manufacturing alcoholic liquor business or business establishments.

'(f) It shall be unlawful for any person to manufacture, sell, barter, exchange, receive, deliver, store or keep in possession within this State any alcoholic liquors except as provided in this Act, and it shall be unlawful for any person to accept, receive or have in possession any alcoholic liquors for unlawful use under the provisions of this Act.

'(g) It shall be unlawful to sell any alcoholic liquors on Sunday or on election days, or during periods of local or State emergency proclaimed by the Governor in the interest of law and order or public morals and decorum, full authority to proclaim which is hereby conferred upon the Governor in addition to all other powers in him now reposed.

'(h) It shall be unlawful for any person to advertise any alcoholic liquors by means of billboards along public highways and streets.

'(i) Every violation of any provision of this Act shall be a misdemeanor and, upon conviction, shall be punished as follows:

'(1) For the violation of the provisions of sub-sections (b)(d) and (e) of this Section a fine or not more than One Hundred ($100.00) Dollars or imprisonment of not more than fifteen (15) days.

'(2) For each violation of any other provision of this Act, except where a different punishment is expressly provided, a fine or imprisonment in the discretion of the Court of General Sessions.'

It will be observed that 'possession' is referred to in four of the eight subsections which declare what 'shall be unlawful', namely, subsections (a), (b), (c) and (f). In subsections (a) and (f) the word appears in connection with general provisions declaring it unlawful for any person to 'manufacture', 'store', 'keep', 'receive', 'transport', 'ship', 'buy', 'sell', 'barter', 'exchange' or 'deliver' alcholic liquors 'except in accordance with the provisions of this Act', or 'for unlawful use under the provisions of this Act.' Subsections (b) and (c) are more specific. In subsection (c), storage or possession of 'any alcoholic liquors' in any place of business other than a licensed liquor store is declared to be unlawful. Subsection (b) specifies two separate, but related, offenses, viz.: (1) purchase or procurement within this State of any alcoholic liquor except from a licensed dealer; and (2) possession of alcoholic liquor in an unstamped bottle or other container.

The offenses defined in subsections (b), (d) and (e) are made punishable, under subsection (i), by 'a fine of not more than One Hundred ($100.00) Dollars or imprisonment of not more than fifteen (15) days'.

Section 94 of Article I of the 1951 General Appropriations Act, Act No. 379, XLVII Stat. at Large, 546, 655, reads as follows:

'Section 94. Sub-Section '1' of Section 14 of Act No. 211, Acts of 1945, known as 'The Alcoholic Beverage Control Act of 1945,' is hereby stricken out and the following inserted in lieu thereof:

"Section 14, sub-section (1): for the violations of sub-sections (b), (d) and (e) of this section, on the first conviction or plea of guilty a fine of not more than One Hundred ($100.00) Dollars or imprisonment of not more than thirty (30) days, and on each subsequent conviction or plea of guilty, a fine of not more than One Thousand ($1,000.00) Dollars, or imprisonment for not more than one (1) year, either or both, at the discretion of the Trial Judge'.'

(There was no subsection 1 of Section 14. The subsection obviously intended to be amended was (i)(1).)

By Section 10 of Part III of the 1951 Supplemental Appropriations Act, Act No. 380, XLVII Stat. at Large 710, 724, it was declared that Article I, Section 94 (among others) of the General Appropriations Act just mentioned 'shall constitute a part of the permanent laws of the State of South Carolina; and the Code Commissioner is hereby authorized and directed to include these Articles and Sections in the 1952 edition of the South Carolina Code of Laws, along with other permanent laws of the State'. The propriety of incorporating permanent legislation in an annual appropriation act, where, as here, the title covers the subject, is recognized in DeLoach v. Scheper, 188 S.C. 21, 198 S.E. 409, and in Doran v. Robertson, 203 S.C. 434, 27 S.E.2d 714.

The general statutory laws, as set forth in the 1952 Code, are arranged under seventy-two titles, comprising six volumes. Title 4 is captioned 'Alcohol and Alcoholic Beverages'; chapter 1 of that title is captioned 'The Alcoholic Beverage Control Act'; and Article 6 of that chapter is entitled 'Offenses and Enforcement'. Title 65 is captioned 'Taxation'; chapter 14 of that title is captioned 'Alcoholic Beverages'; and Article 2 of that chapter is entitled 'License Taxes for Sale of Alcoholic Beverages'.

In the compilation of the 1952 Code, Section 14 of the Alcoholic Beverage Control Act, as amended by the 1951 act before mentioned, was broken up and rearranged as follows:

Subsections (a) and (f) were fused into one, as Code Section 4-91.

Subsection (...