State v. Kelly

• Decision Date: 14 July 1911
• Citation: 71 S.E. 987,89 S.C. 303
• Parties: STATE v. KELLY.
• Court: South Carolina Supreme Court

71 S.E. 987

89 S.C. 303

STATE v. KELLY.

Supreme Court of South Carolina

July 14, 1911

Appeal from General Sessions Circuit Court of Sumter County.

"To be officially reported."

W. P Kelly was convicted of selling whisky, and he appeals. Affirmed.

John H Clifton, for appellant. P. H. Stoll, for the State.

HYDRICK J.

This case was submitted at the November term, 1910. The appeal was dismissed without consideration of the merits, because appellant's attorney filed no argument. 71 S.E. 29. At the June term, 1911, appellant's attorney moved the court to reinstate the appeal. Having satisfactorily excused his failure to file an argument, the motion was granted, and he was allowed to file an argument.

The appeal was heard on the following agreed statement of facts "That the defendant, W. P. Kelly, was tried on June 30 1910, for selling whisky on October 15, 1909, and was tried on July 1, 1910, for selling whisky on June 23, 1910; the dates of the alleged sales being set out in the indictments, as above. There was a variance as to the date alleged in the indictment alleging October 15, 1909. The defendant was given an alternative sentence in the case tried June 30, 1910, and was sentenced in the case tried July 1, 1910, to one year's imprisonment; this offense being treated as the second or subsequent offense under Acts 1909, p. 64.

It is admitted that the counsel for the defendant contended in each case that, by reason of the act of 1909, the date of sale was material, and that it must be proved, and that the date of sale determined the second or subsequent offense, and not the trial of the offense. The trial judge held to the contrary. It is further agreed that, during the trial, commenced June 30, 1910, the following occurred: 'Mr. Clifton (during argument by the solicitor): We object to what the grand jury did. That is a one-sided investigation. The Court: The fact remains that the grand jury presented him. Mr. Clifton: We object to discussing what the grand jury did in the matter, because the defendant had no opportunity of meeting the witnesses there. We are willing to meet them all before this jury. Solicitor: I say the grand jury have done their duty, and the question is now up to you to decide.' It is agreed that the two cases against the defendant, Kelly, are to be heard on appeal together. It is further agreed that sentence in each case was pronounced on the same day, July 9, 1910, and that there was no allegation in either indictment that the offense therein referred to was a first, second, or subsequent offense, and that this objection was made by defendant's counsel before sentence."

Section 11 of the act of 1909 reads as follows: "Any person who violates any of the provisions of this act shall be guilty of a misdemeanor, and, upon conviction thereof, be fined in a sum not less than one hundred dollars nor more than five hundred dollars, or imprisoned at hard labor for a period of not less than three months, nor for more than one year; and for the second or any subsequent offense, upon conviction thereof, shall be imprisoned at hard labor for not less than one year nor more than five years."

To prevent confusion, we will dispose of the two cases separately.

Case Tried June 30, 1910.

The first exception assigns error in not charging that, under the act of 1909, it was necessary for the state to allege and prove a particular date, because the act provides for an increase of the punishment for the second or any subsequent offense. That provision of the act does not change the well-settled rule that, where time is not of the essence of the offense charged, it is not necessary to prove the precise day alleged in the indictment, but proof that the offense was committed on any other day before the finding of the bill will be sufficient to sustain a conviction. State v. Anderson, 3 Rich. 172; State v. Prater, 59 S.C. 271, 37 S.E. 933; State v. Green, 61 S.C. 12, 39 S.E. 185.

But, where it would not otherwise be so, time may be made an essential element of the offense by being made descriptive of it; in that event, the state must prove it as alleged. State v. Van Buren, 86 S.C. 297, 68 S.E. 568. But in the administration of the law, and in the application of that rule of evidence, care must always be taken to properly safeguard the right of the citizen that he shall neither be put in jeopardy nor punished twice for the same offense.

In this state, each sale...