State v. Kanellos

• Decision Date: 11 January 1923
• Docket Number: 11098.
• Citation: 115 S.E. 636,122 S.C. 351
• Parties: STATE v. KANELLOS.
• Court: South Carolina Supreme Court

115 S.E. 636

122 S.C. 351

STATE v. KANELLOS.

No. 11098.

Supreme Court of South Carolina

January 11, 1923

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

Louis G. Kanellos was convicted of the unlawful transportation of intoxicating liquor, and he appeals. Affirmed.

C. N Sapp and G. D. Bellinger, both of Columbia, for appellant.

Solicitor A. F. Spigner, of Columbia, for the State.

FRASER J.

The appellant thus states his case:

"The plaintiff in error, hereinafter called the defendant, was tried before Hon. W. H. Townsend and a jury at the May term of the court of general sessions for Richland county, and, upon the defendant being found guilty, the court sentenced him to serve six months upon the public works of Richland county, or a like period in the state penitentiary, but suspended the sentence during good behavior, provided that the defendant should serve one month of the six months that he was sentenced to serve.

J. P. Smalls, a police officer of the city of Columbia, and the only witness introduced by the state testified that early in the morning of the 19th of February, 1921, he saw the defendant get out of an automobile with a crocus sack full of bottles; that he knew they contained bottles of whisky by the shape and smell; that it was so dark that it was necessary for him to use his flash light in order to tell whether the man was white or colored; the sack was not opened until the defendant was sent to police headquarters; after he arrested him, he saw liquor in the car; that he did not have a search warrant to search either the defendant or the car.

The defendant did not offer any testimony, and moved to strike out the testimony of the witness, on the ground that the testimony was obtained without a warrant, as required by the Constitution of South Carolina and the Constitution of the United States, which motion was overruled by the court."

Argument.

"It will be seen that the first two exceptions raised practically the same questions, to wit: That his honor, Judge Townsend, erred in admitting the testimony of the witness Smalls, with reference to the result of a search of the defendant's person and automobile without a search warrant, in violation of section 16 of article 1 of the Constitution of South Carolina, as well as the Fourth and Fifth Amendments of the Constitution of the United States. The two exceptions will therefore be argued together."

I. The recent case of State v. Green (S. C.) 114 S.E. 317 shows that the first assignment of error cannot be...