State v. Jackson

• Decision Date: 31 March 1947
• Docket Number: 15931.
• Citation: 42 S.E.2d 230,210 S.C. 214
• Parties: STATE v. JACKSON et al.
• Court: South Carolina Supreme Court

42 S.E.2d 230

210 S.C. 214

STATE v. JACKSON et al.

No. 15931.

Supreme Court of South Carolina

March 31, 1947

George K. Laney and James E. Leppard, both of Chesterfield, for appellants.

S. S. Tison, Sol., of Bennettsville, for respondent.

BAKER Chief Justice.

The appellants were tried at the June, 1946, term of General Sessions Court for Chesterfield County on an indictment charging them with the unlawful manufacture of alcoholic liquors. They were found guilty by the jury and this appeal followed.

At the conclusion of the testimony on the part of the State the appellants moved for a directed verdict of acquittal on the grounds that there was no evidence to show that either of the defendants was engaged in the manufacture of alcoholic liquors, which motion was refused, and it is from the refusal of such motion that the first of the two questions submitted to this Court stems. The precise question raised is 'Were the facts adduced by the State sufficient to constitute the offense of 'unlawful manufacture of alcoholic liquors' within the meaning and intendment of Section 1845 of Volume I of the Code of Laws of South Carolina, 1942?' It is, therefore, necessary that we briefly refer to the testimony on behalf of the State.

By reason of information which had been received by the officers of the law in Chesterfield County, three of the deputy sheriffs of said County went to the vicinity in which the appellants were living alone on a small tract of land, on which was situate a more or less dilapidated residence and barn, and commenced to search in and around the premises and adjacent lands. Neither of the appellants was home at the time. The officers followed a sled track from the barn at the house where the appellants lived, across a field, or lands which they were cultivating in either cotton or corn, to the woods and the swamp, and on into the swamp and to the banks of a stream known in that neighborhood as Bear Creek, this being a distance of about five hundred yards from the residence and barn aforementioned. At the end of the trail of the sled on the banks of Bear Creek, but on land over which the appellants had no control, the officers found what they described as a complete manufacturing outfit, a still characterized as a 'submarine type' (of which this Court has no knowledge), containing 'buck or mash' which had reached the stage of fermentation where it was practically ready to 'run'; and according to the officers, with the type still that was being used, all that was necessary thereafter was to put fire under it. There was also found at this place a new lard stand that did not have any top for it, but a new top which fitted this lard stand was found at the residence of the appellants, wrapped up in a piece of paper. The vat containing the 'buck or mash' as described by the officers, was made partially from wood or lumber, with a metal bottom, and it was stated by the officers that after the necessary fermentation had taken place of the mash in this wooden vat, that all that was necessary was to build a fire thereunder. The part that the new lard can would play in the manufacture of whiskey is probably explained by the following testimony of officer King: 'They had a new lard stand that they were using at the still with a hole in it where they run the pipe in and I guess that was used for the cap, stuck the pipe down in there, * * *'. In the barn at the house occupied by appellants the officers found some lumber, or pieces of lumber which they compared with pieces of lumber out of which the vat or still was constructed, and these pieces of lumber found in the barn and the lumber out of which the still or vat was constructed, corresponded as to the grain and saw marks made by the saw when it was manufactured. In making this distillery outfit, it appears from the testimony to have been necessary to mix up a clay which was denominated as white chalk, and daub it over and around the still to keep the steam from coming out, and on the handle of an axe at the home of appellants there was found white chalk or clay, which corresponded with that around the still. In addition to the sled trail from the barn of the appellants to the site of the still, there were tracks where someone had walked, and about half way between the still and a little ditch out in the field towards the home of appellants, the officers found some Coca Cola one-gallon jugs. The house where the appellants lived, and the small farm adjacent thereto, had been owned by the deceased wife of the appellant, Drew Brown, and we assume at the time in question, was owned by her heirs, Drew Brown and their children, the latter, it is testified, residing with the mother of said appellant.

We attach no particular significance to the fact that a sled was found on the premises of the appellants in that sleds of this character are used quite often to drag fertilizer into fields being cultivated in that section of the State (and possibly other sections); and the officers testifying for the State made no comparison as to whether the track made by the runners of the sled from the premises of appellants to the still corresponded with the runners of the sled found there although one of the officers, despite this, testified that 'it looked like the same sled that made the track.' (We presume that unless there is something unusual about the runners of these 'home-made' sleds, the tracks made by all of them would resemble.)

The still was not in actual operation at the time it was found in that no fire had been built, but one officer testified that there were ashes there, indicating that it had been operated at some time prior.

The foregoing is a brief summation of the testimony on behalf of the State.

Except for the testimony that ashes were there, which evidenced that the still had been used for the manufacture of whiskey, this case might come within the reasoning of the dissenting opinion of the late Mr. Justice Hydrick in State v. Ravan, 91 S.C. 265, 74 S.E. 500, 502, where it was stated: 'In misdemanors where an attempt is not an indictable offense, the law recognizes the existence of the point of repentance; and hence, unless the statute expressly makes the attempt or the engaging in the process of manufacturing liquors a crime, one is not guilty of violating the law until the manufacture is completed, because he could repent at any moment, short of completing the process, stop and save himself from the penalty of the law.'

Ordinarily the manufacture of alcoholic liquors would contemplate the finished product, but the rule has been established in this State that an overt act in the process of manufacturing is sufficient to show unlawful manufacture, and that each case must be decided dependent upon its particular facts, especially as to the issue whether a verdict of acquittal should be...