State v. Marchbanks

• Court: South Carolina Supreme Court
• Writing for the Court: McIVER, C.J.
• Citation: State v. Marchbanks, 61 S.C. 17, 39 S.E. 187 (S.C. 1901)
• Decision Date: 26 June 1901
• Parties: STATE v. MARCHBANKS.

39 S.E. 187

61 S.C. 17

STATE v. MARCHBANKS.

Supreme Court of South Carolina

June 26, 1901

Appeal from general sessions circuit court of Anderson county.

John Marchbanks was indicted for keeping a liquor nuisance, and appeals. Affirmed.

Defendant appeals on following exceptions: "(1) Because his honor erred in permitting the witness Tom Hallum to testify, over the objection of the defendant, that the defendant gave him whisky to drink over at Mr. Tom Prater's whereas the indictment charged maintaining a nuisance at defendant's residence, and not at the residence of Mr Tom Prater; being unresponsive to the indictment and prejudicial to the defendant. (2) Because his honor erred in not instructing the jury to disregard the testimony of Tom Hallum as to the sale or handling of liquor at Mr. Tom Prater's house. (3) Because his honor erred in admitting the testimony of James Durham on the ground that the same might be competent if connected with the charge, and in failing to charge the jury to disregard such testimony, as not being connected with the charge. (4) Because his honor erred in not excluding the testimony of Dan Williams, under the objection of the defendant, in reply to the question 'How do you know that you sent up there once?' and in allowing him to state, over defendant's objection, 'I gave him (his boy) a quarter and told him to go up to Mr Marchbanks for some whisky;' such answer being hearsay and irrelevant. (5) Because his honor erred in holding as follows: 'I find, in liquor cases, every witness that swears in a dispensary case is reluctant to testify;' such expression being in violation of the constitution of the state (article 5, § 26), that 'judges shall not charge juries in respect to matters of fact,' but shall declare the law. (6) Because his honor erred in holding as follows: 'I find that in liquor cases every witness that swears in a dispensary case is reluctant to testify,'--as he thereby created the impression that the witnesses for the state were reluctant and unwilling witnesses, and as such were entitled to be believed, and, further, were keeping in the background and unsaid other evidence which would show the guilt of the defendant. (7) Because his honor erred in not excluding the testimony of Dan Williams, under the objection of the defendant, in answer to the question, 'Would they be quiet and orderly in going over to his house?' because such question was leading, and the response, 'Well, they appeared to be; sometimes they went across my field, and I did not know where they were going,' such answer being irrelevant and uncertain. (8) Because his honor erred in refusing to grant defendant's motion for a new trial on the ground that, admitting all of the evidence of the state to be true, it was not sufficient, as matter of law, to sustain a conviction, in that the evidence does not show that there was any habitual bartering, selling, or drinking of liquor, but that the transactions were disconnected and casual."

E. M. Rusker and Blythe & Blythe, for appellant.

U. X. Gunter, Asst. Atty. Gen., for the State.

McIVER C.J.

The defendant was indicted, tried, and convicted under an indictment containing a single count, in which the defendant was charged that "on the 20th day of March, 1899, and on divers other days, both before and since that day, up to the taking of this inquisition, the [defendant] did willfully and unlawfully keep and maintain a place at his residence, in the county of Anderson and state aforesaid, where alcoholic liquors are sold, bartered, and given away, and where persons are permitted to resort for the purpose of drinking alcoholic liquors as a beverage, and where alcoholic liquors were kept for sale and delivery, thereby then and there keeping and maintaining a common nuisance." The defendant appeals on the several grounds set out in the record, a copy of which will be incorporated by the reporter in his report of the case.

The first and second exceptions, raising objections to the competency of the testimony of the witness Tom Hallum, will be considered together. These objections are based upon the ground that the testimony of that witness related to a transaction--giving him whisky to drink--which occurred at Tom Prater's; and, as the charge in the indictment was that the defendant maintained a nuisance "at his residence," such testimony was incompetent and the jury should have been instructed to disregard such testimony. Inasmuch as the testimony which is set out in the "case" tends to show that defendant lived on Tom Prater's place, and as the...