State v. Evans
| Decision Date | 25 February 1950 |
| Docket Number | 16321. |
| Citation | 57 S.E.2d 756,216 S.C. 328 |
| Parties | STATE v. EVANS. |
| Court | South Carolina Supreme Court |
Hemphill & Hemphill, Chester, for appellant.
W. G. Finley, Sol., York, for respondent.
The appellant and another were tried, convicted and sentenced at a term of the Court of General Sessions for Chester County on March 8 1949, on an indictment charging them with manufacturing whiskey on February 11, 1949. The warrants for the arrest of the defendants also alleged the date as of February 11, 1949.
On the trial of the case, the witnesses for the State fixed the date as of February 10, 1949. When the State closed its case, the appellant moved for a direction of a verdict of not guilty on the grounds: (1) That there was a material variance between the indictment and the proof, and (2) That the appellant was taken by surprise by said variance.
After considerable discussion, the State moved to amend the indictment to conform to the proof. Appellant objected thereto on the ground that he was taken by surprise. Appellant's motion for a direction of verdict was refused, and the State was permitted to amend so as to allege the date as of February 10, 1949, and the trial proceeded.
Following the arrest of the appellant, either he or his counsel demanded a preliminary hearing before the magistrate who issued the warrant, which hearing was granted, and the testimony then taken was that on the 10th day of February, 1949, the appellant and two others were at the site of the still, and that upon becoming aware of the presence of officers, the appellant and the other two men ran. Appellant and his counsel therefore knew prior to the finding of a 'true bill' on the indictment that February 10, 1949, was the date on which the appellant would have to furnish an alibi if such was a part of his defense. No issue was made at the preliminary hearing as to the date testified to by the witnesses, so the appellant had ample notice to be prepared with his alibi testimony for such date. Of course, if no preliminary hearing had been held, and for the first time the witnesses for the prosecution fixed the date as February 10 1949, when the appellant was prepared with his witnesses to prove an alibi for February 11, 1949, then it would have been proper for the trial Judge, after permitting the amendment of the indictment to conform if such was necessary, to have declared a mistrial, and continued the case until the appellant could procure witnesses to testify as to his whereabouts on the date alleged in the indictment as amended.
We find no error in the refusal of the trial Judge to direct a verdict of not guilty at the close of the testimony on behalf of the State on the ground that there was a material variance between the date alleged in the indictment and the testimony; nor did the trial Judge err in permitting the indictment to be amended so as to charge the manufacture of whiskey on February 10th.
The real issue in this case is whether the trial Judge erred in refusing the motion of the appellant for a direction of verdict of not guilty at the close of the testimony of the State on the ground that there was no evidence of an overt act on the part of the appellant in the manufacture of whiskey; or any evidence, that is, circumstantial or direct, tending to prove that the appellant was engaged in the manufacture of whiskey as alleged in the indictment.
It appears to us that the evidence in the cases of State v. Brock S.C., 126 S.E. 765, not reported in the S. C Reporter, and State v. Quick, 199 S.C. 256, 19 S.E.2d 101, was much stronger against the defendants-appellants in those cases than in the instant case, and yet this Court held therein that the trial Judge in the respective cases erred in not granting the motions of the defendants-appellants for direction of verdicts of not guilty. A brief summary of the facts in those cases is set out in State v. Jackson et al., 210 S.C. 214, 42 S.E.2d 230.
On the morning of February 10, 1949, at...
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