State v. Parris
| Decision Date | 03 July 1911 |
| Citation | 71 S.E. 808,89 S.C. 140 |
| Parties | STATE. v. PARRIS. |
| Court | South Carolina Supreme Court |
1. Indictment and Information (§ 114*)— Allegation of Conviction of Prior Offense—Necessity.
An indictment need not allege that the offense charged is a subsequent offense for the purpose of increasing the punishment on a conviction and an allegation of a prior conviction should be stricken out on motion of accused.
[Ed. Note.—For other cases, see Indictment and Information, Cent. Dig. §§ 301-307; Dec. Dig. § 114.*]
2. Criminal Law (§ 1202*) — Punishment — Prior Offenses—Statutes—Construction.
To justify the imposition of the increased punishment authorized by Acts 1909 (26 St. at Large, p. 60), prohibiting the sale of intoxicating liquor, and declaring, in section 11, that the punishment for the second or any subsequent offense shall be by imprisonment, there must be a prior conviction of a violation of the act, and a former conviction of a violation of a municipal ordinance relative to intoxicating liquors is insufficient.
[Ed. Note.—For other cases, see Criminal Law, Cent. Dig. §§ 3260-3265; Dec. Dig. § 1202.*]
3. Criminal Law (§ 762*) — Evidence — Instructions—Charge on the Facts.
Where, on a trial for keeping intoxicating liquors for unlawful sale, there was evidence that accused had concealed on his person intoxicating liquor, and that intoxicating liquor had been found in his house partially concealed, a charge that the jury must determine from the circumstances whether accused had liquor in his possession for an unlawful purpose, and that if a practicing physician had liquor in his possession, the jury would naturally infer that he was going to use the same for medicine, while if a notorious blind tiger traveled around with liquor they would naturally suppose he was plying the trade, was objectionable as a charge on the facts.
[Ed. Note.—For other cases, see Criminal Law, Cent. Dig. §§ 1731, 1758; Dec. Dig. § 762.*] Appeal from General Sessions Circuit Court/ of Spartanburg County; Robt Aldrich, Judge.
"To be officially reported."
J. R. Parris was convicted of crime, and he appeals. Reversed.
J. B. Atkinson, for appellant.
J. C. Otts, Sol., for the State.
HYDRICK, A. J. Appellant was convicted on an indictment which contained two counts. The first count charged him with "keeping a place where alcoholic liquors are kept for unlawful use, and where people are permitted to come and traffic in liquors"; and the second count charged him with "having in his possession alcoholic liquors for unlawful use, and storing and keeping the same." After the formal parts, the indictment contained the following charge: "And the jurors aforesaid, upon their oaths, do further present that J. R. Parris has been heretofore duly convicted for violating statutes relating to the sale of liquors and beverages containing alcohol, by a court of competent jurisdiction."
Upon the call of the case for trial, defendant's attorneys moved to strike from the indictment the allegation, above quoted, of a previous conviction, on the ground that it was evidentiary matter or surplusage. The motion was refused, the court holding that, as the statute increased the punishment for a second or any subsequent offense, the allegation that the offense charged in the indictment was of that character was necessary. This view of the law is in harmony with the greater number of decided cases in other jurisdictions. See 22 Cyc. 356, and cases cited. But the contrary rule was established in this state in Smith's Case, 8 Rich. 460, where the court held that the indictment need not state whether it is for the first or second offense, though the second offense, in that case, was punishable with death, while the first offense was punishable only with whipping. To the same effect is the ease of State v. Allen, 8 Rich. 448. We think, therefore, the motion should have been granted.
Section 11 of the act of 1909 reads: "Any person who violates any of the provisions of this act shall be guilty of a misdemeanor, and, upon conviction thereof, be fined in a sum not less than one hundred dollars nor more than five hundred dollars, or...
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Apprendi v New Jersey
...and subsequent South Carolina decisions acknowledged that Smith was out of step with the general rule. See State v. Parris, 89 S. C. 140, 141, 71 S. E. 808, 809 (1911); State v. Mitchell, 220 S. C. 433, 434-436, 68 S. E. 2d 350, 351-352 6 The gulf between the traditional approach to determi......
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