State v. Kilgore

• Decision Date: 17 April 1958
• Docket Number: No. 17415,17415
• Citation: 103 S.E.2d 321,233 S.C. 6
• Court: South Carolina Supreme Court
• Parties: The STATE, Appellant, v. B. M. KILGORE, Respondent.

Page 321

103 S.E.2d 321

233 S.C. 6

The STATE, Appellant, v. B. M. KILGORE, Respondent.

No. 17415.

Supreme Court of South Carolina.

April 17, 1958.

Hubert E. Nolin, County Sol., Greenville, for appellant.

Leatherwood, Walker, Todd & Mann, Greenville, for respondent.

LEGGE, Justice.

Defendant was convicted in a magistrate's court of having in his possession four bottles of unstamped whiskey, in violation of Section 5 of the Act of March 28, 1956 (Code Supplement, 1957, Section 65-1270). The Greenville County Court reversed, upon the ground that the whiskey was, at the time of defendant's arrest, moving in interstate commerce; and the State has appealed.

The facts are not in dispute. The defendant, formerly a resident of Greenville, S. C., is now and has been for some years a resident of the State of Florida. On or about August 11, 1957, he came to Greenville by automobile belonging to and driven by friends who went on to Waynesville, North Carolina, leaving him in Greenville where he was to visit friends until August 22, when he intended to return by train to Florida. On August 17, defendant borrowed an automobile from a friend with whom he was staying in Greenville, and went in it to Hendersonville, North Carolina, where he visited briefly with friends there. On his way back to Greenville that day he stopped at Tryon, North Carolina, and there purchased four bottles of whiskey, each containing four-fifths of a quart. He was stopped in Greenville County, South Carolina, by law enforcement officers, to whom he admitted possession and ownership of the whiskey. He showed them the four bottles, unopened, that he had purchased in Tryon, and to which South Carolina revenue stamps required by Section 65-1267 of the 1952 Code were, of course, not affixed.

Defendant, respondent here, admits that when he was stopped by the South Carolina law enforcement officers he was not en route to Florida. He admits that he intended to return to Florida five days thereafter, and then by train, and not by the automobile in which he was riding at the time of his arrest.

The statute under which respondent was charged declares that 'it shall be unlawful for any person to have in possession any bottle or other package containing alcoholic liquor, to which the revenue stamps required by § 65-1267 [Code of Laws of South Carolina, 1952] have not been affixed'. Penalty is, for a first offense, fixed at 'a fine of one hundred dollars or imprisonment for thirty days'.

Since the adoption of the Twenty-first Amendment, each state has power, unfettered by the commerce clause, to regulate or prohibit the importation of intoxicating liquor for delivery or use within its borders. One Hundred Second Cavalry Officers' Club v. Heise, 201 S.C. 68, 21 S.E.2d 400; Finch & Co. v. McKittrick, 305 U.S. 395, 59 S.Ct. 256, 83 L.Ed. 246; Ziffrin Inc., v. Reeves, 308 U.S. 132, 60 S.Ct. 163, 84 L.Ed. 128. Independently of the Twenty-first Amendment, it may, without offending the commerce clause, impose reasonable regulations with regard to the transportation of intoxicating liquor through its territory from one neighboring state to another. Duckworth v. State of Arkansas, 314 U.S. 390, 62 S.Ct. 311, 86 L.Ed. 294, 138 A.L.R. 1144; Carter v. Commonwealth of Virginia, 321 U.S. 131, 64 S.Ct. 464, 88 L.Ed. 605.

In the case at bar the admitted facts are not reasonably susceptible of inference that the whiskey was in interstate commerce at the time of respondent's arrest. Respondent's journey from Tryon to Greenville was not an integral part of its continuous transportation from North Carolina to Florida; its intended stopover in Greenville could not reasonably be considered as a delay necessarily incident to, and therefore essentially a part of, such transportation. The leading case of Coe v. Town of Errol, 116 U.S. 517, 6 S.Ct. 475, 477, 29 L.Ed. 715, was concerned with the right of the Town of Errol, New Hampshire, to impose a tax on logs that had been hauled during the previous winter from a location in that state and placed in and near a stream in the Town of Errol, to be thence floated down the Androscoggin River into the state of Maine, there to be manufactured and sold. Discussing the applicability of the commerce clause to that situation, the court said:

'Does the owner's state of mind in relation to the goods,--that is, his intent to export them, and his partial preparation to do so,--exempt them from taxation? This is the precise...