State v. Goodall

• Decision Date: 10 March 1952
• Docket Number: No. 16600,16600
• Citation: 69 S.E.2d 915,221 S.C. 175
• Parties: STATE v. GOODALL.
• Court: South Carolina Supreme Court

Page 915

69 S.E.2d 915

221 S.C. 175

STATE v. GOODALL.

No. 16600.

Supreme Court of South Carolina.

March 10, 1952.

N. Welch Morrisette, Jr. Columbia, for appellant.

T. P. Taylor, Sol., Columbia, for respondent.

STUKES, Justice.

This appeal is upon a single exception which is as follows: 'That the order of the Hon. G. Duncan Bellinger ordering appellant to service one year and six months for the charge for which he was convicted is excessive under the facts and circumstances of this case.'

The record before us consists of copies of the indictment, the sentence of eighteen months confinement in the penitentiary at such labor as appellant can perform, the order admitting him to bail pending appeal and the following fully quoted statement, to all of which counsel agreed in writing that it should constitute the Transcript of Record for appeal.

'The appellant was convicted in his absence on the 29th of May, 1951, before the Honorable G. Duncan Bellinger, Presiding Judge of the 5th Judicial Circuit, and a jury, at the Richland County Court House, Columbia, S. C., of the charge of unlawful possession of the liquors in his place of business. He was found not guilty of the second and final count of the indictment, charging him with willfully and unlawfully receiving and keeping in his place of business liquors for unlawful use.

'The Honorable G. Duncan Bellinger, on June 2, 1951, by sealed sentence, sentenced the appellant to such hard (sic) labor as the appellant may be able to perform in the State Penitentiary for a period of one year and six months.

'Thereafter when the appellant was apprised of his conviction, he surrendered himself to the Sheriff of Richland County.

'The appellant thereupon moved that he be let to bail, and the Honorable G. Duncan Bellinger, with the consent of the Honorable T. P. Taylor, Solicitor, granted said motion, and the appellant duly complied with the terms of said order and is now out on bail pending the final determination of this appeal.

'Thereafter, and in the time required by law, appellant served written notice of intention to appeal to this Court from the order of the Honorable G. Duncan Bellinger sentencing the appellant to the State Penitentiary for a year and six months, said Order being dated June 2, 1951.'

From the foregoing only are 'the facts and circumstances of this case' derivable. (The quotation is from the above quoted exception. Appellant transgressed Rule 8, sec. 7, of this court by arguing alleged facts which do not appear in the record and cannot be considered.) They disclose nothing to evoke the rare jurisdiction of this court to interfere with the exercise of the discretion of the trial judge in the imposition of sentence upon a defendant who has been found, or has pleaded, guilty of the commission of crime. A recent, rare example is State v. Kimbrough, 212 S.C. 348, 46 S.E.2d 273, reference to which should be had for review of earlier authorities.

The controlling question here presented is whether the facts show manifest abuse of discretion, which it is very clear must be answered in the negative and the judgment affirmed.

Similar unsucessful appeals from comparable sentence for violation of the same or a like statute are State v. Phillips, who pleaded guilty, 193 S.C. 273, 8 S.E.2d 626, and State v. Brandon, 210 S.C. 495, 43 S.E.2d 449.

Appellant at bar was convicted of the possession and storage of alcoholic liquors in his place of business (his 'store house,' quoting from the indictment) which was not a licensed liquor store, which was in violation of subsection (c) of section 1842 of the 1946 Code Supplement. Subsection (i)(2) prescribes that the penalty in such a case shall be fine or imprisonment in the discretion of the Court of General Sessions. For possession anywhere of unstamped liquor (subsection b), for employment in the liquor business of a minor (subsection d), and for drinking on the premises of a liquor establishment (subsection e), all of which are apparently less serious crimes, the penalty is stipulated in subsection (1) as a fine of not over $100 or imprisonment of not over fifteen days, which is within the jurisdiction of a magistrate. On the other hand, it is seen that the violation of which appellant was convicted is exclusively within the jurisdiction of the Court of General Sessions, which may impose a fine or imprisonment in its discretion. Appellant could hardly have expected leniency in the form of suspension or probation when he failed to attend his own trial.

It was said in State v. Steadman, 216 S.C. 579, 59 S.E.2d 168, 182, certiorari denied, 340 U.S. 850, 71 S.Ct. 78, 95 L.Ed. 623, as follows: 'It is the established rule in this state that this court has no jurisdiction on appeal to correct a sentence alleged to be excessive, when it is within the limits prescribed by law for the discretion of the trial judge, and is not the result of partiality, prejudice, oppression, or corrupt motive. State v. Phillips, 215 S.C. 314, 54 S.E.2d 901; 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. Gregory, 198 S.C. 98, 16 S.E.2d 532.' And the following was quoted with approval from the Scates case: 'An exhaustive definition of the phrase 'abuse of discretion' would be difficult, if not impossible. Each case must be determined with reference to its own peculiar facts. The exercise of a sound judicial discretion must and should be performed in every case with a conscientious regard for what is just and proper under the circumstances. It does not appear here that the trial court's discretion was exercised arbitrarily, or for reasons clearly untenable or unreasonable.' [212 S.C. 150, 46 S.E.2d 695.]

The judgment is affirmed.

FISHBURNE and OXNER, JJ., concur.

BAKER, C. J., and TAYLOR, J., dissent.

TAYLOR, Justice (dissenting).

Appellant was convicted in his absence on the 29th day of May, 1951, before the Honorable G. Duncan Bellinger, Presiding Judge of the Fifth Judicial Circuit, and a jury in the Court of General Sessions for Richland County of the charge of unlawful possession of alcoholic liquors in his place of business, such not being a licensed liquor store and same being in violation of subsection (c) of Section 1842 of the Alcoholic Beverage Control Act of 1945. Whereupon the following sealed sentence was passed by the Presiding Judge that 'Henry Goodall be confined at such labor as he can perform in the State Penitentiary for a period of Eighteen (18) months.'

Appellant now comes to this Court contending that such sentence is so severe and excessive as to amount to cruel and unusual punishment in violation of Section 19, Article 1 of the South Carolina Constitution, which provides that 'Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted * * *.'

The appellant, Henry Goodall, is 44 years old and a semi-invalid with only one arm. When seven and one-half pints of liquor were found in his place of business, which was not a liquor store, he was arrested upon a warrant duly issued by Ben H. Walker, Esq., one of the magistrates of Richland County and posted a $100 cash bond. Upon call of the matter before the magistrate, the $100 bond was declared forfeited. Sometime thereafter, upon order of the solicitor, Honorable T. Pou Taylor, the $100 bond which had been declared forfeited by the magistrate was returned to appellant and the case sent to the Court of General Sessions for trial. Upon learning that he had been tried and sentenced by the Court of General Sessions in his absence, appellant surrendered to the sheriff of Richland County for the purpose of opening and receiving such sentence.

Several cases of similar nature have come to this Court raising similar questions. In State v. Phillips, 193 S.C. 273, 8 S.E.2d 626, the appellant had six and one-half pints of stamped, tax-paid liquor in his place of business and was sentenced to serve two years imprisonment on the condition, however, that upon service of eight months, the remainder of the sentence was suspended. In State v. Bell, 215 S.C. 311, 54 S.E.2d 900, Bell was convicted of possessing for unlawful purpose and use and of manufacturing alcoholic liquors, and the Presiding Judge in that case sentenced the defendant of eighteen months. Bell admitted to the Court that he had engaged in the unlawful liquor business for...