State v. Phillips

• Decision Date: 13 May 1940
• Docket Number: 15084.
• Citation: 9 S.E.2d 32,194 S.C. 46
• Parties: STATE v. PHILLIPS.
• Court: South Carolina Supreme Court

9 S.E.2d 32

194 S.C. 46

STATE v. PHILLIPS.

No. 15084.

Supreme Court of South Carolina

May 13, 1940

Hemphill & Hemphill, of Chester, and T. K. McDonald, of Winnsboro for appellant.

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

BAKER Justice.

At the September Term, 1939, of the Court of General Sessions for Fairfield County, the appellant was convicted and sentenced for, on August 18, 1939, unlawfully storing alcoholic liquors which did not have South Carolina revenue stamps affixed to the container and containers thereof. The indictment upon which he was tried contained another count, to-wit unlawfully having in his possession alcoholic liquors, which did not have South Carolina revenue stamps affixed to the containers. Soon after entering upon the trial, the State elected to prosecute on only the count charging storing.

The first witness for the prosecution (a deputy sheriff for Fairfield County) had barely begun his narrative, when the learned Solicitor undertook to propound the following question: "Mr. Parrish, as an officer of the law, within the past three years, since the adoption of the liquor law, how many times have you had occasion to search or raid ***," when he was interrupted by counsel for the appellant with an objection as to the remoteness and indefiniteness of such testimony. Thus was precipitated a lengthy discussion between the trial Judge, the Solicitor and appellant's counsel as to the admissibility of testimony of former violations of the liquor laws of this State by the appellant.

The theory upon which testimony of former violations of the law--having in possession and the storing of unlawful liquor or lawful liquor for an unlawful purpose--if not too remote is admissible against a defendant on trial for the unlawful storing of liquor on a subsequent date, is that such testimony tends to establish "continuity" or "habit" which is a necessary element in the crime of unlawfully storing. State v. Browning, 154 S.C. 97, 151 S.E. 233. During the discussion above referred to, and which continued thereafter, the trial Judge excused the jury. In its absence, the witness was further examined for the purpose of aiding the trial Judge in determining how far in the past he would permit testimony of former violations. It was developed that on two occasions the officers of the law had found liquor on the premises of appellant, these occasions being in two or three months prior to May, 1938 (it was later developed in the trial, according to the officers' testimony, that it was in March, 1938), and in May, 1938. Also, that several searches of the appellant's premises were made between May, 1938, and August, 1939, but no liquor was procured, "but found they poured it out". Of course, the statement in quotation was but a conclusion on the part of the witness. With this information, the trial Judge...