State v. Maes

• Decision Date: 07 December 1923
• Docket Number: 11361.
• Citation: 120 S.E. 576,127 S.C. 397
• Parties: STATE v. MAES.
• Court: South Carolina Supreme Court

120 S.E. 576

127 S.C. 397

STATE v. MAES.

No. 11361.

Supreme Court of South Carolina

December 7, 1923

Appeal from General Sessions Circuit Court of Charleston County Mendel L. Smith, Special Judge.

Oscar Maes was convicted of violating the prohibition law, and part of the sentence was suspended on condition. From an order adjudging that the condition of the suspended sentence had been violated, defendant appeals. Affirmed.

The decree of Circuit Judge Mendel L. Smith follows:

On the 21st day of June, 1916, the respondent Oscar Maes, was convicted by a jury in the court of general sessions for the county of Charleston, under three counts, of a violation of what is generally known as the Prohibition Law (Cr. Code S.C 1922, §§ 820-888).

Upon this verdict the sentence and judgment of the court was pronounced upon him at the bar thereof on the 22d day of June, 1916, by Hon. R. W. Memminger, presiding judge, as follows:

"It is the judgment and sentence of the court that the within named defendant, Oscar Maes, be confined at hard labor upon the public works of the county of Charleston for a term of six months, or for a like term at hard labor in the state penitentiary.

It is further ordered and adjudged, however, that four months of the sentence herein pronounced be, and the same is, hereby suspended upon the conditions hereinafter imposed, that is to say, upon the payment to the clerk of the court of said county of the sum of seventy-five ($75.00) dollars, or a service of a term of two months, at hard labor, on the public works of the county of Charleston, or a like period, at hard labor, in the state penitentiary, and upon the further express condition that the within named Oscar Maes shall not in any way violate any of the laws of this state, or municipal ordinances, relating to alcoholic liquors, whether of a regulative or prohibitive nature, either directly or indirectly, or through the means of any form of agency copartnership, or any other form or method of business, so designed, and shall not in any manner use, or knowingly become a party to the use of, any premises, or engage in any manner or form in any business whereby such laws or ordinances shall be violated; and in the event that it shall be brought to the attention of the court that such terms and conditions, or any of them, are not being observed, and the court shall, upon an investigation thereof in such manner as shall to it seem proper, conclude that the terms and conditions as hereinabove set forth have been in whole or part violated, then the suspension of sentence as herein imposed shall thereupon immediately cease and the within named Oscar Maes shall forthwith suffer and undergo the sentence of the court as above imposed, that is to say, shall be confined at hard labor upon the public works of the county of Charleston for the remainder of the said term, namely four months, or for a like period in like manner, in the state penitentiary."

The defendant accepted the terms and conditions therein embodied by the payment of the fine and there is nothing on record in the office of the clerk of court of the county of Charleston to show that he has ever been pardoned of such violation of the law.

That on the 13th day of February, 1923, the Honorable Thomas P. Stoney, solicitor of the Ninth circuit, officially brought to the attention of the court, by the presentation of several affidavits, that the terms and conditions of the said sentence were not being observed, and thereupon obtained a rule against the respondent to show cause on the 16th day of February, 1923, why he should not be ordered to begin forthwith the service of the suspended part of said sentence.

In his return to the rule and objections to certain testimony adduced at the hearing the respondent contends: (a) That under the language contained in this sentence, when properly interpreted, the court is limited in determining whether the terms and conditions thereof have been violated to proof of a conviction, under constitutional guarantees, of a violation of law; (b) that any other judicial finding for the determination of this question would be violative of his rights under the Fifth Amendment to the federal Constitution, and article 1, § 17, of the state Constitution; (c) that substantially all of the incriminating evidence submitted at the hearing was obtained by, and under the direction of federal officers, in an unauthorized search of respondent's house, in violation of the search and seizure and compulsory self-incrimination clauses of the federal (Fourth and Fifth Amendments) and state (article 1, §§ 16 and 17) Constitutions, and should be excluded; (d) that if there was a violation of the said terms and conditions, such offense was incited and created by officers of the law for the sole purpose of prosecuting and punishing it, and therefore should not be regarded as a violation of the terms and conditions of the said sentence; (e) that a federal grand jury acting upon the same state of facts has returned no bill on an indictment charging the respondent with the offense of interfering with officers in the discharge of their duty; and (f) that the testimony, if considered is not sufficient to show a violation of the terms and conditions of the said sentence.

At the hearing in open court, the state and respondent offered witnesses, including the respondent himself, who were regularly sworn, examined and cross-examined.

A brief statement, in substance, of the testimony offered by the state is as follows:

It was reported to the officers that the respondent was selling whisky. On the night of April 21, 1922, Tom Williams and O. B. Seabrook, federal prohibition officers, State Agent Parker and Robert Meyers, a car repairer in the service of the Atlantic Coast Line Railroad Company, visited the respondent's place of business in North Charleston, not a great distance from the navy yard on the road leading from the Meeting Street road, to ascertain if possible, the correctness of this report. Meyers was asked to accompany the officers through apprehension that the latter would be recognized and that no sale would be made to them for obvious reasons. Meyers stated that he had bought whisky from the respondent on previous occasions, knew him well, and that he used his own funds on the occasion in question; that his action was purely voluntary and that he had no agreement with the officers for any compensation, nor was it understood that he should receive any; that he was largely prompted to render this assistance "because every time a decent lady went into his (respondent's) place he would insult her."

It was understood between the parties that Meyers would go in to make the purchase and when this was consummated and the liquor was actually produced, Williams, who was looking through the glass from the outside and could see everything that was happening, was to give a signal to Seabrook, who, in turn, would rush in and seize the liquor. Pursuant to this prearranged plan, Meyers went into the store, which was open for business, told the respondent what he wanted and purchased from him a quart of corn liquor, contained in coco-cola bottles, whereupon Meyers gave him in payment his check for the sum of $4, which the respondent at first refused to accept until assured by a mutual friend that it was good. When respondent delivered the whisky to Meyers, the latter set the bottles on the counter and almost immediately hereafter Williams gave the agreed signal.

He and the others rushed into the store (Parker is no longer in the service of the state), the respondent became very angry and boisterous and broke several bottles containing corn liquor on the cement floor of the building, including the ones which he had delivered to Meyers. Williams then asked the respondent for the check given him by Meyers, which the respondent first denied having, but afterwards produced from his pocket, and, in the presence of the officers, tore it into pieces and threw them on the floor. Williams gathered the pieces of this check, placed them in a sealed envelope and kept them in a desk drawer in the post office building for several months. For the purpose of this hearing, these pieces were assembled in the office of the solicitor, so arranged and pasted on paper as to reproduce the check, which was offered in evidence, as a part of the record in this proceeding. Thereafter a warrant was sworn out by one of the federal officers against the respondent charging a violation of the federal prohibition law, and is now pending for trial in the federal court. The grand jury did not find a bill on the indictment charging him with an unlawful interference with officers in the discharge of their duties growing out of the same transaction.

The testimony presented by the respondent is substantially as follows:

Eighteen years ago he came over here as an immigrant on the Wittekind. About seven years ago he paid a fine of $75 in court for selling liquor. He was not present when the case was tried but was sent for and paid his fine. He knew Meyers by face only. When Meyers came into his store that night, he (Meyers) said he had a quart of good liquor he wanted to sell him, but respondent told him he was not fooling with whisky. Meyers said, however, "Come on and let me give you a drink," and pulled out a half-pint bottle and handed it to respondent. Before that, Meyers had placed two bottles on the counter. He then gave respondent a drink, who went in the icebox to get a soft drink because he had to have a soft drink as a "chaser." Meyers then grabbed the soft drink out of his hand and ran and the officers came in. Williams grabbed respondent, who was just serving a customer and put him under arrest. Mr. Routh, who was present...