State v. Kanellos

• Court: South Carolina Supreme Court
• Writing for the Court: GARY, C.J.
• Citation: State v. Kanellos, 124 S.C. 514, 117 S.E. 640 (S.C. 1923)
• Decision Date: 26 May 1923
• Docket Number: 11221.
• Parties: STATE v. KANELLOS.

117 S.E. 640

124 S.C. 514

STATE v. KANELLOS.

No. 11221.

Supreme Court of South Carolina

May 26, 1923

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

Louis G. Kanellos was convicted of unlawfully transporting intoxicating liquor, and he appeals Affirmed.

Cothran and Watts, JJ., and Memminger and Wilson, Circuit Judges dissenting.

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

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

GARY C.J.

The following statement appears in the record:

"This is an appeal from the judgment of the court of general sessions for Richland county, based upon the verdict of a petit jury which found the defendant, Louis G. Kanellos, guilty under a bill of indictment, which charged that Louis Kanellos and Newton Kelly did, on the sixteenth day of September, in the year of our Lord one thousand nine hundred and twenty-one, with force and arms, at Columbia Courthouse, in the county and state aforesaid, willfully and unlawfully transport and convey from a point without this state into this state, or from place to place within this state, spirituous, malt and other liquors, to wit, two quarts of White Horse Scotch whisky which contained more than one per cent. of alcohol and used as a beverage, for the purpose of delivery, against the form of the statute in such case made and provided, and against the peace and dignity of the state.

The bill of indictment also contained a second count, which charged that Louis Kanellos did, on the sixteenth day of September, 1921, willfully and unlawfully carry a deadly weapon concealed about his person, to wit, a pistol. The defendant, Louis Kanellos, was also indicted upon another and second indictment, which charged him with the transportation of twelve quarts of whisky on the 16th day of September, 1921, the same day of the offense alleged in the indictment charging him with the transportation of the two quarts of White Horse Scotch whisky. The defendant was tried upon the two indictments at the same time, but the jury was unable to agree as to the guilt of the accused under the second indictment, that is to say, under the indictment charging him with the transportation of the twelve quarts of whisky. Accordingly the trial judge ordered a mistrial under that indictment.

Upon the call of the case for trial the solicitor announced that he would nol. pros., and did nol. pros. the case as to the defendant Newton Kelly, and the case was then tried against the defendant Louis Kanellos alone before the Honorable W. H. Townsend and a jury at the May term of the court of general sessions for Richland county, and upon the defendant's being found guilty, the court sentenced him to serve six months upon the public works of Richland county at hard labor or a like period in the state penitentiary."

The following are the appellant's exceptions:

(1) "That his honor erred in failing to strike out the testimony of the witness T. A. Berley, in so far as he testified as to the finding of the two quarts of White Horse Scotch whisky in the possession of the defendant or in his automobile, when the defendant moved to strike out such testimony with reference to the search and seizure of the defendant's automobile on the ground that that officer making the search and seizure had no search warrant the error being that inasmuch as it is unlawful for an officer to search the person or premises of another without a search warrant, evidence obtained by reason of search made without a warrant is incompetent."

(2) "That his honor erred in passing upon the motion to exclude the testimony of the witness Berley as to what he found in the defendant's automobile by ruling that the absence of a search warrant was immaterial, and in holding that the testimony did not show any unreasonable search authorizing the exclusion of such testimony; when he should have held that, under the testimony of the witness Berley, the whisky, for transporting which the defendant was arrested, was discovered by the officer, Berley, while he was making a search of the defendant's car and before he had obtained a search warrant."

(3) "That his honor erred in holding that the presence of the whisky in the defendant's automobile was discovered by the officer, Berley, without his having made any search therefor; in his holding that the said whisky was being transported by the defendant in the presence of the officer, Berley, and that the said officer knew, before any search was made, that the defendant, Kanellos, was engaged in the transportation of liquor at the time that he arrested him."

(4) "That his honor

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