State v. Littlejohn, 17084

• Decision Date: 14 November 1955
• Docket Number: No. 17084,17084
• Parties: The STATE, Respondent, v. Horace LITTLEJOHN, Appellant.
• Court: South Carolina Supreme Court

Page 924

89 S.E.2d 924

228 S.C. 324

The STATE, Respondent, v. Horace LITTLEJOHN, Appellant.

No. 17084.

Supreme Court of South Carolina.

Nov. 14, 1955.

Julien D. Wyatt, Felix L. Finley, Jr., Pickens, John T. Gentry, Easley, for appellant.

Solicotor James R. Mann, Greenville, for respondent.

LEGGE, Justice.

Horace Littlejohn was convicted under an indicment charging that on May 1 1954, he 'did wilfully and unlawfully have in his possession in his cafe place of business seventeen half-pints and four pints of alcoholic liquors'. His appeal charges error on the part of the trial judge: (1) in refusing to direct a verdict in his favor, and (2) in refusing certain requests to charge.

Appellant, a Negro, owns and operates a cafe and beer parlor and pool room on the ground floor of a two-story concrete block building in or near the town of Clemson in Pickens County. He also owns and operates a motor court on U. S. Highway No. 123 about two miles distant from Clemson. He and his wife live at the motor court. Mildred Chalmers is employed in the cafe and lives on the second floor of that building. Access to that floor is by means of a stairway on the outside of the building.

On the afternoon of May 1, 1954, Deputy Sheriffs Ross, Foster and Merck went to appellant's place of business in Clemson with a warrant for its search. Appellant and his employee, Mildred Chalmers, were in the cafe. Ross and Merck searched the ground floor, while Foster went up the outside stairs to search the upper floor. Merck testified that in the kitchen he found 'a funnel, a measuring cup, and four or five half-pint bottles'. Neither he nor any other witness testified that these were whiskey bottles or that there was anything about the funnel or the measuring cup to indicate that they were used, or usable, in connection with alcoholic liquor.

Foster, having found the door to the upstairs apartment locked, returned to the cafe and so informed Ross, who asked appellant for the keys. At this point there is a slight, and we think immaterial, variance in the testimony of the several witnesses. According to Ross, appellant turned to Mildred Chalmers and told her to go upstairs, and she picked up a bunch of keys that were lying near the cash register, and went upstairs with Ross and Foster and opened the door for them. According to Foster, 'he (Ross) asked Littlejohn for the keys, and this girl that worked behind the counter there handed him the keys'. According to Merck, Foster 'came back and asked for the key and Horace told a colored girl there, Mildred, I believe her name is to get the key for him', and she got the key, which 'was laying on the shelf by the cash register'.

Ross and Foster, in company with Mildred Chalmers, then went outside of the building and up the stairs to the second floor, and Mildred Chalmers unlocked the door. Ross returned to the cafe, and Foster proceeded to search the several rooms upstairs. He testified that they were four in number, namely: (1) a bedroom, in which was, in addition to a bed and dresser and the usual furniture, a baby's bed; (2) a kitchen; (3) a 'room with mostly junk in it'; and (4) another room, the contents of which he did not recall. Under the baby's bed he found a box containing four pint bottles and seventeen half-pint bottles of assorted bourbon and blended whiskey. Affixed to each bottle were the proper South Carolina revenue stamps. In response to his inquiry, Mildred Chalmers stated that the whiskey was hers.

Appellant denied any knowledge of the whiskey. He testified that Mildred Chalmers, who had formerly lived in North Carolina, had been in his employ for about two months; that she rented the entire apartment above the cafe, paying as rent $6 per week; that she was the only person who had a key to the upstairs apartment; that he had been to Greenville on the afternoon in question, and had driven up to the cafe just before the officers arrived; that he had not known that the bunch of keys was by the cash register; and that when the officer had asked for the key to the upstairs apartment he had replied that the upstairs was Mildred's apartment and that she had the keys.

Mildred Chalmers, who gave her age as twenty-one years, testified that she had been employed by appellant for several weeks, at a salary of $26.00 per week; that she lived in the apartment unstairs, paying the weekly rental of $6.00 sometimes to appellant and sometimes to his wife; that on her key-ring were not only the key to her apartment but also the keys to the cafe and the money box and the pool room; and that appellant had no key to her apartment. She said that she had bought the whiskey at a licensed liquor store in the nearby town of Seneca the day before, which was a Friday as she was planning to give a party in her apartment on the following Monday night for some friends from North Carolina; and that the whiskey, which cost 'about $30.00 or $40.00', had been bought with her own money.

In considering whether the court below erred in not directing a verdict in favor of the defendant, we must view the foregoing testimony in the light most favorable to the State. State v. Epes, 209 S.C. 246, 39 S.E.2d 769. It must be remembered, too, that there is one test by which circumstantial evidence is to be measured by the jury in its deliberations, and quite another by which it is to be measured by the trial judge in his consideration of the...