State v. Harrell

Decision Date14 November 1927
Docket Number12314.
Citation140 S.E. 256,142 S.C. 17
PartiesSTATE v. HARRELL.
CourtSouth Carolina Supreme Court

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

Wallace Harrell was convicted of unlawfully possessing intoxicating liquor, and he appeals. Affirmed.

Miller Lawson & Stokes, of Hartsville, for appellant.

M. J Hough, Sol., of Chesterfield, for the State.

STABLER J.

The defendant Harrell was convicted by a jury of having in possession intoxicating liquors in violation of the prohibition law (Cr. Code 1922, § 820 et seq., as amended) and was sentenced by the court to imprisonment for a period of 12 months, 6 months of which time were suspended.

He now appeals to this court. As stated and argued by his counsel, the exceptions impute error to the trial court in the following seven particulars: (1) In refusing to direct a verdict for the defendant, and in holding that the evidence was sufficient to support the verdict; (2) in refusing to require the state to elect upon which count in the indictment it would go to trial; (3) in criticizing the appellant in the matter of his motion for a continuance; (4) in refusing to allow the solicitor to stop the prosecution; (5) in criticizing the law invoked on behalf of appellant; (6) in the admission of certain testimony; (7) in imposing a sentence that was excessive and in violation of article 1, § 19, of the Constitution.

As to the first question: When the testimony was all in, the court directed the jury that whatever verdict they might find should refer only to the third count of the indictment, which charged the defendant with having intoxicating liquors in his possession contrary to law. In support of this charge, the undisputed testimony adduced by the state showed that the officers went to the home of the defendant, searched his dwelling house, and found 42 half gallons of corn whisky "hidden next to the chimney under the ceiling." Under this testimony, it was for the jury to say in whose possession the whisky was at the time it was seized; a reasonable inference being that it was in the possession of the appellant, the head of the household. The motion for a directed verdict was properly refused by the court.

As to the second question: The indictment contained five counts, two of which, the first and the fourth, were stricken from the indictment upon the call of the case for trial. The second count charged the defendant with storing whisky; the fifth, with storing whisky in his dwelling house; and the third, with having whisky in his possession. Defendant's counsel moved the court to require the state to elect on which of these three counts it would proceed. The court overruled the motion, holding that the state might proceed on all three. It is only necessary to refer to the cases of State v. Beckroge, 49 S.C. 484, 27 S.E. 658, and State v. Woodard, 38 S.C. 353, 17 S.E. 135, to show that the trial judge committed no error in overruling the defendant's motion.

As to the third question: When the case was called, at 11:30 o'clock on the morning of the day of trial, counsel for the defendant moved for a continuance on the ground that the defendant's witnesses were not present, stating that there had been some negotiations looking to the disposal of the matter without trial. The court thereupon gave the defense until 3 o'clock in the afternoon to get ready for trial, counsel stating that he would be ready at that hour. When the case was called at 3 o'clock, defendant's counsel announced that his client had not yet arrived, whereupon the court extended the time for trial to 3:30. Counsel then submitted the affidavit of W. M. Stokes in support of his motion for a continuance. The court, in overruling the motion, made these remarks:

"In order that the record may appear to be complete, I ask the stenographer to note that this case has been on the docket four terms; that at the spring and fall term the record shows that it was continued by the defendant. The case was called between 11 and 12 o'clock to-day, and motion was made for a continuance on the ground of the absence of witnesses. The court granted a continuance until 3 o'clock, and counsel representing the defendant said he would be ready at that time. No word has been received from the defendant since that time, although he was in court at the time this morning, and left to procure his witnesses by 3 o'clock. He was not here at 3 o'clock, and the court granted indulgence until 3:30 o'clock."

We do not think that these remarks of the court can be construed as a criticism of appellant's course in trying to secure a continuance. On the contrary, they were made, as stated by the trial judge, for the purpose of making the record complete. In denying appellant's motion, the court merely brought to the attention of counsel that, in the matter of continuances, the record showed that defendant had no ground for complaint, and that the court, upon counsel's motion had granted appellant every reasonable concession and indulgence, consistent with fairness to the state, to secure his witnesses. The appellant's objection is without merit.

As to the fourth question: During the trial of the case, the court after some discussion by counsel, ruled that the reach warrant which the officers had used in making the search of appellant's premises was insufficient, as it did not give the source of affiant's information as required by section 857 of the Criminal Code, whereupon the solicitor Mr. Hough, stated that he did not know whether to pursue the case any...

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