State v. Phillips

• Decision Date: 24 April 1940
• Docket Number: 15068.
• Citation: 8 S.E.2d 626,193 S.C. 273
• Parties: STATE v. PHILLIPS.
• Court: South Carolina Supreme Court

8 S.E.2d 626

193 S.C. 273

STATE v. PHILLIPS.

No. 15068.

Supreme Court of South Carolina

April 24, 1940

C T. Graydon and John Grimball, both of Columbia, for appellant.

W G. Finley, Sol., of York, for respondent.

CARTER Justice.

On June 24, 1939, certain officers of Fairfield County raided a filling station operated by Ernest Phillips. Six half pints of stamped, tax-paid liquor were discovered. He was thereafter indicted in the Court of General Sessions for Fairfield County, the indictment being in part as follows: "That Ernest Phillips **** did wilfully and unlawfully have in his possession and store, in his place of business, illegal stamped whiskey, he not being a licensed liquor dealer, against the form of the statute." To this charge defendant plead guilty. He was sentenced to two years imprisonment, on the condition, however, that "upon the service of eight (8) months, the remainder of the sentence is suspended during good behavior". From the sentence and judgment of the Court defendant appeals.

The first question raised is: "Was the sentence of the Court imposed in conformity with Section 15 or Section 18 of Act No. 199 of the Acts of the South Carolina Legislature for 1939?" It is obvious from the language of the indictment that the charge against defendant was preferred under Section 15. As there is nothing in the record which would lead us to think otherwise, we must conclude that the sentence was imposed under Section 15.

The second question for disposition is: "Was the sentence as imposed by the lower Court in proper form or should it have been imposed in the alternative of a prison sentence, only in default of payment of a fine?" Counsel for appellant contends that "it was the intention and is today the intention of the Legislature every time they pass a statute providing for a punishment in the alternative that the Court should sentence the defendant in the alternative and let him decide whether he would rather pay the fine or serve the prison sentence".

In State v. Davis, 86 S.C. 208, 68 S.E. 532, 533, the defendant was given a prison sentence under Section 169 of the Criminal Code then in effect which read: "Whosoever shall steal from the field any grain, cotton or vegetables whether severed from the freehold or not, shall be deemed guilty of a misdemeanor, and, on conviction thereof, shall be punished by imprisonment for not more than five years or by a fine of not more than five hundred dollars." In answer to defendant's contention that the sentence was void because it was not in the alternative, this Court said: "Such a construction of the statute would give the prisoner the right to determine whether he should suffer fine or imprisonment, whereas the statute leaves it to the court to determine what shall be the sentence, either by fine or by imprisonment." In State v. Goins, 122 S.C. 192, 115 S.E. 232, syllabus 1 is: "Cr.Code 1912, § 697, making non-support of wife or minor child a misdemeanor, and providing that upon conviction thereof defendant shall be imprisoned for a term not exceeding one year or be liable to a fine not exceeding $200, gives the court discretion to impose either fine or imprisonment, but requires it to determine which of the two shall be imposed."

Defendant contends that, in spite of the decisions in the above two cases, "it would be to the benefit of the State and in accordance with the intent of the Legislature" if the Court would hold that, wherever a statute provides for punishment by prison sentence or by payment of a fine, the defendant should be allowed to choose whether he will serve a prison sentence or pay a fine. We do not agree with defendant here, however. The...