State v. Everall

Citation123 S.E. 824
Decision Date08 August 1924
Docket Number(No. 11569.)
CourtUnited States State Supreme Court of South Carolina
PartiesSTATE. v. EVERALL.

Cothran, J., dissenting.

Appeal from General Sessions Circuit Court of Lancaster County; J. E. Peurifoy, Judge.

C. H. Everall was convicted of selling Jamaica ginger and storing intoxicating liquors, and he appeals. Affirmed.

J. Harry Foster, of Rock Hill, for appellant.

J. L. Glenn, Jr., Sol., of Chester, for the State.

WATTS, J. The defendant was indicted for selling Jamaica ginger and storing alcoholic liquors. The defendant was convicted and sentenced by Judge Peurifoy to the penitentiary for two years.

The exceptions, six in number, raise two questions, charging on facts and submission of a charge not included in the indictment. These exceptions are overruled, under the authority of State v. Johnson, 113 S. C. 350, 101 S. E. 851.

Affirmed.

FRASER, J., concurs.

MARION, J., concurs in result.

GARY, C. J., did not participate.

COTHRAN, J. (dissenting). The defendant was convicted and sentenced to two years' imprisonment under an indictment containing three counts: (1) Selling Jamaica ginger, a liquor alleged to contain alcohol and used as a beverage; (2) receiving, accepting for unlawful use, storing, and keep-ing in possession for unlawful use, Jamaica ginger and extracts alleged to contain alcohol and used as a beverage; (3) receiving, accepting, and having in possession more than a gallon of spirituous liquor containing more than 1 per cent. of alcohol and used as a beverage.

In my opinion the indictment upon its face shows that the defendant was not indicted under section 888, Or. Code 1922, relating to tonics, bitters, drugs, medicines, toilet articles, or other compounds containing alcohol. It is equally clear that his honor the circuit judge, in his charge to the jury, treated the prosecution as one under that section. That this was prejudicial to the defendant is manifest.

It will in reason be assumed that section 888 was intended to cover a case not covered by the general law upon the subject of intoxicating liquors of force at the time of its enactment (A. D. 1919); otherwise, its enactment would have been a useless ceremony. Aside from this assumption, it is clear that the inhibited practice was not covered by the existing law. As a matter of fact the section has omitted entirely reference to the intoxicating character of the compound. The essential elements of the crime constituted by the act are that the compound shall contain alcohol "in a greater quantity than is necessary for the purpose of extraction, solution, or preservation of such preparation, " and that it "can be used as a beverage." The assumption appears to be that, if it does contain such excess of alcohol, the compound, ex vi necessitate, is intoxicating. So that the element of such excess of alcohol is doubly made an essential element in the statutory crime.

The act evidently was intended to tighten up the prohibition law and meet a deplorable tendency which had not been apprehended. It added to the prohibited beverages, not only those commonly used as a beverage, but those "which can be" so used, and cast upon the seller the burden of proving that "the...

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2 cases
  • State v. Everall
    • United States
    • South Carolina Supreme Court
    • 8 Agosto 1924
  • United States v. Lockett
    • United States
    • U.S. Court of Appeals — Eleventh Circuit
    • 21 Enero 2016
    ...a statute charging an offense made a crime thereby, must allege the essential elements prescribed by the statute." State v. Everall, 129 S.C. 159, 123 S.E. 824, 825 (1924). South Carolina law does not make the type of dwelling an essential element of burglary. For example, in State v. Small......

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