State v. Cook

• Decision Date: 28 January 1944
• Docket Number: 15618.
• Parties: STATE v. COOK.
• Court: South Carolina Supreme Court

28 S.E.2d 842

204 S.C. 295

STATE v. COOK.

No. 15618.

Supreme Court of South Carolina

January 28, 1944

Appeal from General Sessions Circuit Court of Greenville County; E C. Dennis, Judge.

Bill Cook, Jr., was convicted upon all counts of an indictment which charged him with selling a pint of illegal whisky, of having in his possession 4 1/2 other pints of similar contraband, and for maintaining a statutory nuisance, and he appeals.

In liquor prosecution where bona fides of alleged sale by defendant of his business prior to raid of it by officers was an issue, failure of the writer and witnesses of purported evidence of the sale to testify was subject of legitimate argument by prosecuting attorney, notwithstanding his failure to object to admission of purported bill of sale in evidence without formal proof of execution.

H P. Burbage, of Greenville, for appellant.

W A. Bull, Sol., of Greenville, for respondent.

STUKES Justice.

Appellant was convicted at the last September term of the Court of General Sessions for Greenville County upon all counts of an indictment which charged him with selling a pint of illegal whiskey (without state revenue stamps affixed and cancelled upon the container), of having in his possession four and a half other pints of similar contraband, and for maintaining a statutory nuisance. The latter refers to a country filling station, dance-hall and store with adjacent tourist cabins on the Buncombe Road in northern Greenville County.

At the time of the alleged offenses and at the time of the trial appellant's appeal was pending from his conviction in the same Court of maintaining a nuisance at the identical place at an earlier date. Conviction upon the prior charges was affirmed by this Court, State v. Lee, 203 S.C. 536, 28 S.E.2d 402.

After obtaining a search warrant from a Magistrate, a Deputy Sheriff, accompanied by another, visited the premises on Sunday evening, August 15, 1943, and saw an unnamed sailor, identified by his uniform, come out of the filling station (after following appellant in) and upon search of his person a pint of the contraband liquor was found which the sailor said he had just purchased inside. Search of the building was then made by the officers who discovered the other illegal whiskey in evidence.

Other facts disclosed by the record will be referred to in the discussion of appellant's exceptions. They are thirteen in number, have been separately argued and the principal ones will be so treated but without specific reference to each by its number.

The first relates to the denial by the trial Judge of appellant's motion for continuance beyond the term upon the certificate of a physician to the effect that defendant had been in the military service and stationed in England but was discharged some months before because of heart trouble and that in the doctor's opinion trial then might endanger his health; that the heart disorder made appellant extremely nervous and in the doctor's opinion continuance of the case was advisable. It is axiomatic that disposal of such a motion is within the sound discretion of the trial Judge and his exercise of the latter will not be disturbed on appeal unless abuse of it is shown, with resulting prejudice to appellant, neither of which is apparent in the record before us; appellant was present at the trial and testified. See the multitude of South Carolina cases to this effect in 10 West's S. E. Dig., Criminal Law, k 586.

Apparently on account of the motion just mentioned and a further motion by defendant's counsel for a continuance because he had broken his eye-glasses and could not obtain the prompt repair of them, the able and long experienced trial Judge continued the case, which was first set for trial on Wednesday, until the afternoon of the following Friday, the scheduled last day of the term, and then proceeded with it over counsel's protest. Meanwhile, however, the latter had employed another lawyer of experience to assist him, at least reducing the handicap of his lack of good vision. Authority need not be cited to show that under these circumstances it was a proper exercise of discretion on the part of the Court to deny continuance beyond the term.

Although appellant admitted his presence at the store at the time of the raid he defended in part upon the alleged ground of the sale of the business on July 1, 1943, to one Harrison, fifteen years a physical cripple, unable to operate it alone, who testified for the defense that he ran it with the aid of unpaid volunteer help. Both alleged seller (appellant) and alleged purchaser of the business admitted in testimony, as stated, that they were at the place at the time of the raid and at least one of the officers testified that appellant admitted to him then that he was operating the establishment.

Bolstering this claim of former sale of the business, appellant introduced in evidence a purported bill of such sale dated July 1st, executed by appellant and with two names signed as of witnesses. By consent of the State the document was admitted in evidence without formal proof of execution. Appellant testified that it was prepared by a former county officer who lived in the neighborhood.

In the course of the Solicitor's argument to the jury he commented upon the failure of appellant to produce as witnesses at the trial either of those indicated as such by the instrument, and similarly with respect to the scrivener. Appellant's counsel immediately made objection and the Court ruled that such was not well taken and that the Solicitor was not precluded from making the argument merely because the paper writing had been introduced in evidence.

The last mentioned is the basis of appellant's third and tenth exceptions which he argues without citation of authority. We find no error. The fact or, at least, the bona fides of the alleged sale by appellant of the business prior to the raid of it was an issue in the trial and the failure of the writer and the witnesses of the purported evidence of the transaction to testify was the subject of legitimate argument by the prosecuting attorney. His failure to object to admission of the paper in evidence without formal proof of execution did not bind him or the State to the genuineness, date of delivery, etc., of the document. The following is quoted from 23 C.J. 47-8; "Uncontradicted evidence is not, however, necessarily binding on the court or a jury, but may be disbelieved where it is contrary to natural or physical laws, opposed to common knowledge, inherently improbable, inconsistent with circumstances in evidence, or somewhat contradictory in itself, especially where the witness is a party or interested, or where, in the very nature of things, it is impossible to secure opposing testimony."

The fourth exception alleges error in refusal to accede to appellant's request that the jurors be asked by the Court if any were "kin to any of the Sheriff's force." Instead, the Court inquired whether any was a constable or...