State v. Harrell

• Decision Date: 15 November 1927
• Docket Number: 12315.
• Citation: 140 S.E. 258,142 S.C. 24
• Parties: STATE v. HARRELL et al.
• Court: South Carolina Supreme Court

140 S.E. 258

142 S.C. 24

STATE v. HARRELL et al.

No. 12315.

Supreme Court of South Carolina

November 15, 1927

Appeal from General Sessions Circuit Court of Darlington County; W H. Townsend, Judge.

Wallace Harrell and others were convicted of unlawfully transporting intoxicating liquor, and they appeal. Affirmed.

The judge's charge and the exceptions were as follows:

Judge's Charge.

"Mr. Foreman and Gentlemen of the Jury: The three defendants, Wallace Harrell, Jim Shirley, and Murray Williams, are indicted and charged with violation of the prohibition law in a number of particulars charged in this indictment. There are only two, however, to which you need give attention; that is, the charge of stilling and manufacturing whisky contained in the first count, and the charge of transporting whisky, or conveying it from one place to another, contained in the fourth count, of the indictment. There is no evidence tending to show storing and keeping in possession, or receiving for unlawful use contained in the second, third, and fifth counts of the indictment. So, as to the second, third, and fifth counts of the indictment, the defendants are entitled to be acquitted but you are to determine from the evidence whether the charges contained in the first and fourth counts of the indictment have been proved.

The charge in the first count is distilling and manufacturing g alcoholic liquors, used as a beverage, and containing more than 1 per cent. alcohol, and the charge in the fourth count of the indictment is transporting such liquor from one place to another. These are the charges you are to consider, and the burden is upon the state to prove the defendants, or such of them as you may find guilty, guilty beyond a reasonable doubt, before you should convict them. A reasonable doubt is some doubt for which you can give a reason growing out of the testimony. It may be because of a lack of evidence sufficient to show guilt, or because of the presence of some evidence which raises a reasonable doubt as to their guilt.

Where circumstantial evidence is relied upon to show guilt, the circumstances relied upon as a basis of the inference of guilt must be proved beyond a reasonable doubt, and they must point to the guilt of the accused, and must satisfy you of his guilt beyond a reasonable doubt, and they must be inconsistent with any reasonable theory of his innocence.

Where a person is charged with having committed a crime at a particular place and at a particular time, and he shows that at that particular time he was at a different place, that would entitle him to an acquittal, on the ground that no person can be at two different places at the same time. If the evidence tends to show that he was at a different place from the place where the crime was committed, and is sufficient to raise a reasonable doubt in your mind as to whether he was present at the time and place when and where the crime was committed, that would entitle him to an acquittal. In order to convict, the evidence must satisfy you beyond a reasonable doubt of the guilt of the accused.

Now, there are three defendants on trial. If any one of them took part in the distilling, manufacturing, or transporting of liquor as charged in this indictment, that one would be guilty. If more than one of them took part in so manufacturing, distilling, or transporting liquor, the ones so taking part would be guilty. If all of them took part in the distilling or transporting of liquor, then all of them would be guilty.

Now, the form of your verdict which you may find in this case would be either guilty on the first count, which would mean all were guilty on the first count; or guilty on the fourth count, which would mean all were guilty on the fourth count; or guilty on the first and fourth counts, which would mean all were guilty on the first and fourth counts; or one or more, mentioning those by name you may find to be guilty, guilty on the first or guilty on the fourth count, or guilty on the first and fourth counts, according as you may view the testimony; or, not guilty.

Write your verdict on the back of this indictment, and put it in this envelope, and seal it up, tell the constable at the door you have agreed; that is, if it is after 1:30 o'clock. Then they will let you out, and bring it back into court at 3 o'clock."

Exceptions.

"From the judgment and sentence aforesaid defendants appeal to the Supreme Court on the following exceptions:

I. Because there was no evidence to sustain any count in the indictment, and the trial judge erred in refusing the motion for a directed verdict of acquittal.

II. Because the evidence was insufficient to support a verdict of guilty on the charge of transportation.

III. Because, having held that there was no evidence tending to show that defendants received whisky for unlawful use, it followed that there was no evidence of transportation thereof for unlawful use, and the trial judge erred in not directing a verdict accordingly.

IV. Because the trial judge erred in admitting, over objection of the defendant Harrell, the following testimony:

'By Mr. Hough: Q. Well, I can't get your socks off, Mr. Harrell; you did not take them off before the sheriff? A. No, sir.

'Q. You deny that; would you mind showing your feet to -day? A. No, sir. 'Q. I would like to see them, if you don't mind. (Objected to.)

'The Court: It is not for you to object. There is no objection to it, if he does not object. Do you object to doing it? You don't have to.

'Q. Do you want to? A. I would not show it; the sheriff has done looked at it.

'Q. You refuse to show it; did he see it with the socks off? A. No, sir.'

It is respectfully submitted that this defendant was thus compelled to testify against himself, in violation of article 1, § 17, of the Constitution of this state, and article 5 of the Amendments to the Constitution of the United States, and, further, that such cross-examination was so prejudicial as to deprive this defendant of the fair and impartial trial guaranteed to him by the Constitution and the laws.

V. Because his honor, the trial judge, erred in not declaring the law as to the several counts of the indictment, and especially as to the count charging transportation, it being respectfully submitted that no definition of any offense was given, and no instruction at all as to what constituted unlawful transportation. Appellants were thus deprived of the protection guaranteed to them by section 26, art. 5, of the Constitution.

VI. Because his Honor abused his discretion in the sentence imposed, and thereby committed reversible error, said sentence being unjust, unreasonable, and excessive, and in violation of Const. art. 1, § 19."

Miller, Lawson & Stokes, of Hartsville, for appellants.

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

CARTER J.

The defendants Wallace Harrell, Jim Shirley, and Murray Williams were indicted in the court of general sessions for Darlington county for violation of the prohibition law (Cr. Code 1922, § 820 et seq., as amended) under five counts.

The case came on for trial before his honor, Judge...