State v. Phillips

• Decision Date: 17 August 1949
• Docket Number: 16255.
• Citation: 54 S.E.2d 901,215 S.C. 314
• Parties: STATE v. PHILLIPS.
• Court: South Carolina Supreme Court

54 S.E.2d 901

215 S.C. 314

STATE v. PHILLIPS.

No. 16255.

Supreme Court of South Carolina

August 17, 1949

John M. Schofield, Walhalla, for appellant.

Rufus Fant, Jr., Sol., Anderson, for respondent.

STUKES, Justice.

Appellant was jointly indicted with his son-in-law, Jake Grant, at the March 1948 term of the Court of General Sessions for Oconee County upon two counts, first, for unlawful possession on Dec. 9, 1948 (sic) of unstamped alcoholic liquors, and second, for unlawful manufacture, without a license, of alcoholic liquors on the same misstated date.

At that term of Court both defendants signed a written waiver of arraignment, pleaded guilty to the charges contained in the indictment and consented to sentence. Sentences were passed by the court on March 3, 1948, that upon Grant being for one year at hard labor with suspension of the sentence upon probation for three years. Appellant was sentenced to hard labor upon the public works of the county or in the State penitentiary for a term of two years, without suspension or probation. Grant did not appeal. It appears that he is of low mentality and was dominated by appellant.

The statement in the transcript of record is to the effect that before imposition of sentence appellant discussed with the court at length the offenses to which he had pleaded guilty and he again admitted his guilt of the crimes charged and that he had been engaged unlawfully in the liquor business for four or five years and had been apprehended several times before. When first asked what he had to say he informed the court that his wife was a patient in a tuberculosis hospital and there were four small children at home with no one to care for them except himself. The following sentence is quoted from the statement: 'The defendant was given full opportunity to be and was fully heard in the matter.'

The exceptions will be discussed in opposite order from that argued in the brief. The first for consideration is the contention that the indictment was fatally defective because it charged the commission of the crimes on a day which had not arrived. Apparently this inadvertence passed unnoticed until after plea, sentence and adjournment of the court; at least no point of it was meanwhile made. Section 1004 of the Code of 1942 is conclusive, as follows 'Every objection to any indictment for any defect apparent on the face thereof shall be taken by demurrer, or on motion to quash such indictment before the jury shall be sworn, and not afterwards.'

State v. Weaver, 74 S.C. 417, 54 S.E. 615, was decided under the above statute, which was then section 57 of the Code. The indictment in that case was returned on Oct. 10, 1905 defendant was put on trial on Oct. 11 and convicted Oct. 2, 1905. The indictment alleged the commission of the offense on Oct. 18, 1905. In the course of the trial defendant objected to the evidence of the State that in fact the crime was committed on Feb. 18, 1905. The objection was overruled and conviction was affirmed by this court. The syllabus of the opinion is: 'Objection that the date of the committal of an offense is laid in the indictment at a date subsequent to the finding of the bill and of the day of trial must be taken by demurrer or motion to quash before the jury is sworn.' The statute is no less applicable because the appellant in this case waived jury trial by his guilty plea. His position with respect to the statute is as if the jury had returned a verdict of guilty, had he gone to trial, before he questioned the form of the indictment. The old case of State v. Ray, Rice 1, 33 Am.Dec. 90, relied upon by appellant arose before enactment of the presently controlling statute and on that account is of no authority here.

Prejudicial error is alleged for failure of the court to formally inquire of the defendant whether he had anything to say why sentence and judgment should not be pronounced. This ancient common-law practice is known as allocution or allocutus. In the first place the rule is universally held to be inapplicable in the absence of statute in a misdemeanor case, which this is, and it has been held that its omission is not fatal to affirmance of sentence for any offense less than capital. State v. Ball, 27 Mo. 324; Bouv. Law Dict., Rawel's Third Revision, p. 180. The cases from this court apply only to the death sentence. State v. Trezevant, 20 S.C. 363, 47 Am.Rep. 840; State v. Jefcoat, 20 S.C. 383. They represent the majority rule. 24 C.J.S., Criminal Law, § 1576, p. 82; 15 Am.Jur. 114 et seq.; Note, Ann.Cas. 1916C, 95. In the second place, it is undisputed that there was a lengthy conversation after plea and before sentence between the court and appellant which would have met the requirement had it been applicable.

Assignment of error similar to the foregoing was made in the very recent appeal of State v. Bell, S.C., 54 S.E.2d 900, which involved identical crimes, and was overruled. It must be likewise dismissed here.

There only...