State v. Simms

• Decision Date: 30 April 1925
• Docket Number: 11755.
• Parties: STATE v. SIMMS.
• Court: South Carolina Supreme Court

127 S.E. 840

131 S.C. 422

STATE v. SIMMS.

No. 11755.

Supreme Court of South Carolina

April 30, 1925

Appeal from General Sessions Circuit Court of Greenville County; E C. Dennis, Judge.

Colonel Simms was convicted of violating the prohibition law, and he appeals. Sentence set aside, and case remanded for purpose of resentence.

Dean Cothran & Wyche, of Greenville, for appellant.

J. G Leatherwood, Sol., and D. W. Smoak, both of Greenville, for the State.

GARY C.J.

These facts are stated in the record: The defendant was tried and convicted on January 25, 1924, in the court of general sessions for Greenville county, upon the third count of an indictment charging him with violating the prohibition law, and sentenced to four months' imprisonment, and to pay a fine of $500. The testimony by the state tended to prove that the defendant had a five-gallon jug of whisky in his barn, and that after the officers arrived the defendant went to the barn and broke the vessel. The defendant submitted testimony which tended to prove that the whisky was there in the possession of his negro employee, without defendant's knowledge or consent, and that the negro broke it and escaped through a window in the loft of the building. After the verdict the attorney for the defendant made an earnest plea for mercy, stating that the defendant was a farmer with a wife and one small baby, and had never been convicted of a violation of the law of the land before during his life.

The judge, in sentencing the defendant, used the following language:

"Mr. Simms, you must be a bad man. A number of people from your community have been to see me at my office about you, and they have all spoken against you. I have been impressed with the fact that no one has come to see me to speak a good word in your behalf."

The defendant thereafter, within the time provided by law, gave due notice of intention to appeal.

The exceptions are as follows:

"(1) The court erred in permitting citizens to give testimony against the defendant at chambers and in the absence of defendant and in violation of defendant's right to be confronted with witnesses against him under article 1, section 18, of the Constitution of South Carolina, as is shown by the language of the court in sentencing the defendant, which was as follows: [[Already quoted.]"

" (2) The Court erred in allowing citizens to come into his office and discuss the case with him in the absence of the defendant or his counsel, as is shown by the following language used by the presiding judge in sentencing the defendant: [Already quoted.]"

"Specification: Where the liberty of a defendant is concerned, and he is to be tried, he has a right that everything appertaining to the case, in any way of evidence affecting the case, be in open court."

The case of State v. Harvey, 123 S.E. 201, shows that there was error on the part of his honor, the circuit judge.

In delivering the opinion of this court Mr. Justice Watts used this language:

"Judge Bowman did not understand the facts of the case and called for information before passing

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