State v. McGee

Citation33 S.E. 353,55 S.C. 247
PartiesSTATE v. McGEE.
Decision Date03 June 1899
CourtUnited States State Supreme Court of South Carolina

Appeal from general sessions circuit court of Greenwood county; W C. Benet, Judge.

Randolph McGee was convicted of a crime, and he appeals. Reversed.

Giles & Magill and Graydon & Graydon, for appellant.

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

GARY A. J.

The indictment under which the appellant was tried contained three counts, the first charging that he sold liquor; the second, that he maintained a nuisance by keeping a place where persons habitually congregated for the purpose of drinking contraband liquor; and the third, that he had in his possession contraband liquor.

The exceptions raised several questions, the first of which we will consider is whether there was error on the part of his honor, the presiding judge, in charging the jury before any evidence was offered. No specific error is alleged, but it is contended that it is contrary to the custom and practice in this state, and in disregard of the rule that the charge must have some relevancy to the facts of the case. There is no inhibition against a judge charging the jury before the evidence is introduced, but the preliminary charge must be construed with reference to the testimony thereafter introduced, and as forming a part of the general charge. A proposition of law may be correct when construed with reference to one state of facts, and yet may be misleading and erroneous when considered in connection with a different state of facts. When a judge charges the jury before the evidence is introduced, he takes the chances that it will be applicable to the state of facts developed by the testimony and that, although it may state sound propositions of law, it may be misleading and erroneous on account of being inapplicable to the facts of the particular case. The exception raising this question is overruled.

The next question which the court will consider is whether the presiding judge erred in allowing the solicitor to ask, and in requiring the defendant upon cross-examination to answer certain questions, tending to prove facts which it is alleged should have been proved by the state upon its examination in chief; in other words, whether the state had the right to develop its case upon cross-examination of the defendant, or was it confined in its cross-examination simply to the state of facts with reference to which the defendant testified? It was contended by the state that the defendant had waived the right to insist upon this objection by failing to object to similar testimony when another witness was examined. This was not a waiver, but it would have been a waiver if the party objecting had afterwards himself introduced similar testimony; for, having received the benefit of such testimony, he would be estopped from objecting to its competency. The question raised by this exception has been decided several times by this court, and it is only necessary to refer to the cases of Kibler v. McIlwain, 16 S.C. 550; Owens v. Gentry, 30 S.C. 490, 9 S.E. 525; Willoughby v. Railroad Co., 32 S.C. 427, 11 S.E. 339; and Sims v. Jones, 43 S.C. 91, 20 S.E. 905,--to show that the exception raising this question cannot be sustained.

The next question to be considered is whether the presiding judge erred in charging the jury, in said preliminary charge, that all spirituous liquors are presumed to be contraband unless they have been purchased at a dispensary, or, if lawfully purchased elsewhere, have the certificates required by the dispensary law attached to them. In his general charge the presiding judge used the following language: "The third count charges that Randolph McGee has been guilty of storing and keeping in possession contraband liquors. 'Contraband' is the word used in the dispensary law, and is given a definite meaning with reference to that law; and it means any alcoholic liquors which have not been purchased at a dispensary, or, if imported for personal use, have not, attached to the vessels in which the liquors are poured,--bottles or baskets or jugs or boxes or crates or kegs, or the like,--certificates which the state commissioner, under the law, is permitted to furnish, to throw the protection of the law around such liquors. I do charge you that the dispensary law allows citizens of the state to purchase, outside of the state, alcoholic, spirituous, intoxicating liquors for personal use, but when they do so they must comply with the section which permits that; and I shall read a part of it to you. Let me see what the citizen has to do who wishes to import for personal use such liquors: 'Any person resident of this state intending to import for personal use and consumption any spirituous, malt, vinous, or brewed liquors, shall first certify to the chemist of the South Carolina College, the quantity and kind of liquor proposed to be imported, together with the name and place of business of the person, firm, or corporation from whom it is desired to purchase, accompanying such certificate with the statement that the proposed consignor has been requested to forward a sample of such liquor to the chemist at Columbia, S.C. '. But further on: ...

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