State v. Pickett

• Decision Date: 11 July 1896
• Citation: 25 S.E. 46,47 S.C. 101
• Parties: STATE v. PICKETT.
• Court: South Carolina Supreme Court

25 S.E. 46

47 S.C. 101

STATE v. PICKETT.

Supreme Court of South Carolina

July 11, 1896

Appeal from general sessions circuit court of Greenville county Berret, Judge.

William Choice and James Pickett were indicted for transporting liquors contrary to the dispensary act. Defendant Choice was acquitted, but defendant Pickett was convicted, and appeals. Reversed.

C. F Dill, G. W. Dillard, and Jos. A. McCullough, for appellant.

Solicitor Ansel, for the State.

JONES J.

At the November term, 1895, of the court of general sessions for Greenville county, the defendants were indicated as follows "That William Choice and James Pickett, late of the county and state aforesaid, on the twentieth day of June, in the year of our Lord one thousand eight hundred and ninety-five, with force and arms, at Greenville Courthouse, in the county and state aforesaid, in the nighttime, did transport alcoholic liquors, about 2 gallons, in a keg, contrary to the dispensary act," etc. William Choice was acquitted. James Pickett was found guilty, and sentenced to six months' imprisonment, or a fine of $100. Pickett appeals. The circuit judge instructed the jury that the charge in the indictment that the transportation was "in the nighttime" was not material. He was requested to charge the jury "that if they believe the defendants were transporting from place to place within this state contraband liquors, in a cart or other vehicle, of the quantity alleged, in the daytime, the case would be one triable by a trial justice, and this court would not have jurisdiction." This the judge refused, stating that he had already charged that the time was immaterial. The exceptions raise practically two questions: First, whether the words "in the nighttime" are material in an indictment for transporting alcoholic liquors in violation of the dispensary law; and, second, whether the circuit court has jurisdiction to try the offense of transporting alcoholic liquors from place to place within the state.

There are three sections of the dispensary act of 1895 that are necessary to be considered. Section 1, so far as relates to the present inquiry, prohibits the transportation of alcoholic liquors under a penalty of not less than 3 nor more than 12 months at hard labor in the state penitentiary, or a fine of not less than $100 nor more than $500, or both fine and imprisonment, in the discretion of the court. Section 33 provides "that no person *** shall *** transport from place to place within this state by wagon, cart, or other vehicle, or by any means or mode of carriage, any liquors or liquids containing alcohol, under a penalty of one hundred dollars or imprisonment for thirty days for each offense upon conviction thereof as for a misdemeanor." Section 37 provides that "any person handling contraband liquors in the nighttime *** shall be guilty of a misdemeanor, and on conviction shall be punished by imprisonment for not less than three months, nor more than twelve months, or by a fine of not less than one hundred dollars, nor more than five hundred dollars."

Now whether there was error in the charge of his honor that the words "in the nighttime" are immaterial in the indictment depends entirely on whether the indictment is under section 37, above; for, if the indictment is under section 37, it is quite evident that it is essential to charge and to prove that the handling of contraband liquors was in the nighttime, for so it is expressly written in the statute. But the indictment does not charge the defendant with handling contraband liquors, but with transporting alcoholic liquors, etc. It will be observed that sections 1 and 33, above cited, prohibit and punish the transportation of alcoholic liquors, and that section 37 prohibits and punishes the handling of such contraband liquors. Unless, therefore, "transporting" and "handling" mean the same thing, or are equivalent words, it is manifest that the indictment must be referred to either section 1 or section 33, for it charges the "transporting" of liquors, and this is the descriptive word in these sections. "Transport" means to carry, bear or convey from one place or country to another; while "handling" is the act of touching, holding, moving, or managing with the hand. It is clear that there may be a handling of alcoholic liquors which could not with any propriety be described as a transportation thereof. For example, pouring liquors from a blind tiger jug at night might be punished, under section 37, as a handling of contraband liquors in the nighttime, but...