State v. Smoak

• Decision Date: 04 November 1927
• Docket Number: 12308.
• Citation: 140 S.E. 251,142 S.C. 37
• Parties: STATE v. SMOAK.
• Court: South Carolina Supreme Court

140 S.E. 251

142 S.C. 37

STATE v. SMOAK.

No. 12308.

Supreme Court of South Carolina

November 4, 1927

Appeal from General Sessions Circuit Court of Dorchester County; J Henry Johnson, Judge.

Louis Smoak and another were convicted of storing and possessing alcoholic liquors in violation of the prohibition law, and named defendant appeals and files exceptions. Certain exceptions sustained, and new trial granted.

The exceptions referred to in the opinion and matters appearing in the record in relation thereto are as follows:

Upon call of the cause for trial, M. S. Connor appeared for defendant-appellant, and moved the court for a continuance of the cause as to Louis Smoak upon the ground that Mr. R. M Jefferies, of Walterbro, was leading counsel for such defendant, and was not present to assist in his defense, but no reason for Mr. Jefferies' absence was given unto the court. The presiding judge indicated a willingness to delay the trial for a reasonable length of time in order to assure Mr. Jefferies' presence, if such delay would not interfere with the business of the court.

When the court indicated a willingness to postpone the trial until the following morning (Wednesday), the father of defendant, who was in the courtroom, informed the court that a continuance until Wednesday morning would avail nothing, since he has talked with Mr. Jefferies over the telephone that morning, and the latter had informed him that he could not attend upon the court until Thursday or Friday, the court does not recall which day, though he was impressed with the fact that the day named by defendant's father was on a date beyond the day on which the court had previously stated the court of general sessions would adjourn.

Exceptions.

(1) There was an abuse of discretion and legal error in the trial judge refusing appellant's motion for a continuance of the trial from Tuesday until the following day in order for appellant's counsel in chief to be present and conduct his trial, when a bill of indictment had only been found the evening before, and to so have granted such continuance would not have delayed the court nor interfered with the orderly dispatch of its business.

(5) It was error for the trial judge to charge the jury as follows: "In fact, there are so many forms of verdicts which you could return that I shall not attempt to define them all to you. I could hardly tell you how many different forms of verdicts you could return." It was the duty of the court to instruct the jury as to all forms of verdicts which could have been returned by it, and to charge in respect thereto as the court did was misleading and confusing, in that it conveyed the idea that the appellant could be found guilty in other respects than those permitted by law and as indicated by the court's charge, all of which was prejudicial to appellant's interests.

R. Lon Weeks, of St. George, for appellant.

A. J. Hydrick, Solicitor, of Orangeburg, for the State.

WATTS C.J.

This is an appeal from the court of general sessions for Dorchester county. At the October, 1926, term of said court, the appellant, a white man, and Dave Boyd, negro, were tried jointly before J. Henry Johnson, presiding judge, and a jury, upon an indictment charging them, under separate couts, with violations of the prohibition law, one of such counts charging "storing" by appellant and his codefendant, the other charging them with "having alcoholic liquors in possession for unlawful purposes."

The jury having returned a verdict of guilty as to both defendants, they were duly sentenced by the court, and, from such sentence and judgment the defendant, Louis Smoak, alone, appeals.

There are five exceptions. Exceptions 3 and 4 were abandoned at the hearing.

Exception 1 is overruled, as it was within the discretion of his honor, and he did not erroneously exercise that discretion.

Exception 2 is as follows: It was error for the court to have charged "The state, as I understand it, has a charge against Louis Smoak, in effect that he stored whisky at the home of David Boyd, and that David Boyd continued to store it for him," when the indictment simply charged Louis Smoak and David Boyd jointly with having whisky in their possession and storing the same, and to so have charged was a charge upon the facts of the case, and had the effect of conveying to the jury the court's opinion of the facts, to the effect that Louis Smoak, the appellant, took whisky to the home of David Boyd, and David Boyd stored, and continued to store, the whisky for the appellant, as David Boyd had thus testified. This exception must be sustained as a...