State v. Rush
| Decision Date | 08 July 1924 |
| Docket Number | 11542. |
| Citation | 123 S.E. 765,129 S.C. 43 |
| Parties | STATE v. RUSH ET AL. |
| Court | South Carolina Supreme Court |
Appeal from General Sessions Circuit Court of Greenwood County; T J. Mauldin, Judge.
Dave Rush and another were convicted in the county court of manufacturing whisky. From an order of the circuit court affirming the judgment of the county court, they appeal. Affirmed.
Lloyd B. Harrison and Mays & Featherstone, all of Greenwood, for appellants.
H. S Blackwell, Sol., of Laurens, and Marshall F. Sanders, Co. Sol., of Greenwood, for the State.
Dave Rush, Foster Rush, and Walter Deal were tried in the Greenwood county court upon an indictment, dated October 1 1923, charging them with manufacturing whisky on August 23 1923. Walter Deal was acquitted, and Dave Rush and Foster Rush were convicted. Upon appeal to the circuit court, the judgment of the county court was affirmed. From the order of the circuit court, affirming the judgment of the county court, the defendants Dave Rush and Foster Rush bring this appeal.
The appellants were represented in the courts below and are represented here by separate counsel, and their exceptions are separately stated and separately argued.
The exceptions of both parties, the majority of which are not entitled to consideration for noncompliance with the requirements of rule 5, § 6, of this court (Jackson v. Carter [S. C.] 121 S.E. 559; Cudd v. Moore [S. C.] 119 S.E. 837), will be treated together and considered and discussed to the extent, liberally construed, they may be held to present any points directed to the assignment of errors of law, the only class of errors this court has jurisdiction to review in a case of this character.
The proposition most strenuously advanced is that the trial judge committed error of law in refusing to direct a verdict of acquittal and in refusing to grant a new trial as to each of the defendants upon the ground that the evidence was insufficient to support a conviction. If there was any evidence adduced tending to establish the guilt of the accused upon the charge laid, neither of the rulings of the trial judge complained of can, of course, be imputed to him as error of law. Our only legitimate inquiry, therefore, is whether there was any competent evidence properly submissible to the jury. If there was, its weight and sufficiency were for the jury, in the first instance, and for the trial judge, in the second and last instance, in passing upon the motion for new trial. We have carefully reviewed the record of the trial, and are entirely satisfied that there was sufficient evidence adduced tending to establish the guilt of the accused to require submission of the case to the jury. Since the facts of no two cases are ever so nearly identical or closely assimilated as to make the factual showing in one case a sound precedent for a ruling in another case upon the precise question here involved, a detailed statement and argumentative discussion of the evidentiary facts would serve no useful purpose.
In reaching the conclusion that there was evidence for submission to the jury, and that the direction of a verdict would have been improper, we have not overlooked appellants' contention that the evidence was wholly circumstantial, and that the circumstances relied upon to establish guilt did not measure up to the requirements of the law, "in that they were susceptible of reasonable explanation other than that" of defendants' guilt. Whether the evidence as to the two Rushes was wholly circumstantial is open to grave doubt, but, if so, as held by this court in State v. Roddy, 120 S.E. 359:
"Whether the evidence adduced fulfills the requirement of the rule of evidence that all the facts and circumstances must be consistent with the guilt of the accused, and inconsistent with his innocence, is a question that goes to the weight of the evidence, and is clearly for the determination of the jury, as the triers of the facts, under appropriate instructions of the court."
Nor have we overlooked the contention that in passing on the motion for a new trial the presiding judge should have set the verdict aside for inconsistency, in that Walter Deal was acquitted and the two Rushes convicted. As was said in State v. Clayton, 11 Rich. 581, 593:
In such a case, even where the evidence as to all the defendants is the same, we know of no sound reason or principle of law applicable to criminal trials in...
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State v. Parler
...should be submitted to the jury. State v. Prince, 165 S.C. 115, 162 S.E. 777; State v. Gellis, 158 S.C. 471, 155 S.E. 849; State v. Rush, 129 S.C. 43, 123 S.E. 765.' The evidence this case, as in most cases, is conflicting. It is not within our province to weigh the testimony or to pass upo......
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State v. Hayes
... ... 31, ... [135 S.E. 800.] ... E ... 209), and will consider the question raised by the appeal on ... its merits ... To ... state in detail the evidentiary facts of the case would be of ... no value, for, as said by the court in State v ... Rush, 129 S.C. 43, 123 S.E. 765: ... "Since the facts of no two cases are ever so nearly ... identical or closely assimilated as to make the factual ... showing in one case a sound precedent for a ruling in another ... case upon the precise question here involved, a detailed ... statement and ... ...