State v. Penny
| Decision Date | 19 April 1883 |
| Citation | 19 S.C. 218 |
| Parties | STATE v. PENNY. |
| Court | South Carolina Supreme Court |
1. Under an indictment charging the offense to have been committed in the county where the indictment was found, a verdict of guilty establishes as true the fact so charged and this court cannot disturb such finding.
2. The penalties prescribed by the act of 1878, section 16, (16 Stat. 420,) for crossing the bar, when entering port, without a pilot, or a signal for a pilot worn, applies to masters bringing their own vessels into port.
3. The statute prescribing a system of pilotage for the ports of this State, requiring the employment of licensed pilots, and establishing the fees to be paid them by incoming and outgoing vessels, does not conflict with any of the provisions of the constitution of the United States.
4. The offense of crossing the bar without a pilot, or pilot signal worn, under section 16 of the act of 1878, being less than felony and punishable by fine not exceeding $100, is not within the jurisdiction of the Court of General Sessions.
5. An objection to the jurisdiction of the court below, although raised for the first time in this court, must be considered and determined.
Before ALDRICH, J., Charleston, June, 1882.
This was an indictment against S. J. Penny for a violation of the act of 1878 (now section 1275 of the General Statutes of 1882), committed on April 27th, 1881. The opinion states the case.
Mr. W. M. Thomas , for appellant.
Mr. Solicitor Jervey , contra.
The defendant was indicted under the act of 1878, entitled " An act to regulate the pilotage at the port of Charleston." The indictment charged " that on the 27th of April, 1881, at Charleston bar, in the county of Charleston, the defendant, not having a license as a pilot of the bar and harbor of Charleston, of the board of commissioners of pilotage for the port of Charleston, did unlawfully presume to bring into the aforesaid port, and did unlawfully bring into the aforesaid port a certain vessel, to wit: the schooner William B. Herrick, of which he was master, and which had to cross the bar, there being then and there, on said schooner, no signal for a pilot- against the form of the statute," & c. Upon trial he was convicted.
He then moved in arrest of judgment and for new trial on the grounds stated in the exceptions for this appeal, which motion being overruled the appeal was taken:
1. " Because the court had no jurisdiction over the alleged misdemeanor: (1). It having been done on the high seas and within the exclusive jurisdiction of the United States District Court sitting in admiralty; (2). It having been done outside of Charleston county; (3). By a person not subject to the State laws.
2. " Because the proper interpretation of the statute of 1878 does not apply to masters of their own vessels.
3. " Because the statute of 1878 is in violation of § 4237, U. S. Rev. Stat. , in discriminating between vessels of this State and those of other States.
4. " Because the act of 1878 is unconstitutional, being forbidden by article I., section 9 of the United States constitution as an ‘ impost duty’ ; (2). Because it does not come within the purview of the laws regulating pilotage, as permitted by congress, no pilot being pre-supposed in the question; (3). Because it is a restriction on trade and commerce; and (4). Because it is contrary to the law of nations.
5. " Because the indictment does not allege that the schooner Herrick was not a vessel regularly trading between ports of this State."
The first exception, with its three specifications, is based upon the assumed fact that it is apparent upon the record that the venue is laid outside of Charleston county, the county in which the defendant was put upon trial. If the record sustained this allegation then this exception would be fatal, but an inspection of the indictment shows the contrary. The offense is distinctly and in express terms charged to have been committed in Charleston county; not only so, but that being one of the essential facts involved in the issue, the verdict of guilty rendered by the jury has found this as one of the established facts of the case, and we must take this fact as settled, as under the law regulating the powers of this court we cannot go behind a verdict as to the facts of a case. This view disposes of the first exception with its incidents.
It is urged in the second exception that the act of 1878, under which the defendant has been convicted, does not apply to masters of vessels bringing in their own vessels without a pilot, but to parties who shall presume to act as pilots without a regular license. I was much impressed with this position during the argument, for several reasons not now necessary to be adverted to, but upon a careful examination of the act I am satisfied that it cannot be sustained. It is in direct conflict with the express terms of the act, inconsistent with the proviso to the section under which the defendant was indicted, and out of harmony with the evident intent and purpose of the act.
The sixteenth section of the act now found in section 1275 of General Statutes, provides first, that no person shall be authorized to conduct *** except a duly licensed pilot, and then provides further, that every person not having such license who shall presume to bring in *** shall be entitled to no fee or reward, and besides shall be liable to fine of $100 ad valorem or be suspended. The words " ad valorem " or " be suspended" are not found in the original act of 1878, but have been added in General Statutes, for what purpose it is impossible to conceive, especially the words " ad valorem ." The proviso to this section declares that the foregoing prohibition shall not...
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