State v. Stokes
| Decision Date | 17 November 1925 |
| Docket Number | 11861. |
| Parties | STATE v. STOKES. |
| Court | South Carolina Supreme Court |
Appeal from General Sessions Circuit Court of Kershaw County; W. H Townsend, Judge.
Walter Stokes was convicted of unlawful manufacture of alcoholic liquors, and he appeals. Affirmed.
Mendel L. Smith, of Camden, for appellant.
A. F Spigner, Sol., of Columbia, for the State.
The defendant was convicted "of the unlawful manufacture of alcoholic liquors." His appeal from the judgment of the circuit court is based upon exceptions (1) to the admission of certain testimony, (2) to the cross-examination of the defendant by the solicitor, and (3) to the charge of the presiding judge.
The exceptions (1 and 5, inclusive) which impute error to the trial court in the admission of certain testimony and in permitting the solicitor to transgress the legitimate limits of the right of cross-examination are based upon that portion of the official record of the trial below which is set out in the case as follows:
It will be observed that the only question to which an objection was interposed by defendant was that which sought to elicit from defendant an answer as to whether he had ever carried any liquor to his friends.
Exceptions 1, 2, and 3 assign error in permitting the solicitor to ask the questions which preceded that on the ground that the questions were incompetent, irrelevant, and "intended to impress the jury that the defendant was an habitual violator of the prohibition law." If that were a valid ground of objection, it should have been interposed at the trial. Under the well-settled rule, an objection, or ground of objection, to the admission of evidence, not ruled upon by the trial judge, cannot be considered on appeal. We perceive no good reason for waiving that rule in this case, and the exceptions must be overruled. Allen v. Cooley, 53 S.C. 80, 30 S.E. 721; Norris v. Clinkscales, 59 S.C. 243, 37 S.E. 821; Smith v. Mills, etc., 100 S.C. 120, 84 S.E. 422; State v. Cooper, 120 S.C. 280, 113 S.E. 132; Sloan v. Lee, 121 S.C. 426, 114 S.E. 408.
Exceptions 3 and 4 are directed to the contention that, after the trial court had sustained the defendant's objection to the solicitor's question, "Did you ever carry any to your friends?" the solicitor's question or questions which followed as to whether defendant had "carried liquor around this town and Kershaw, Boontown," accompanied by a reference to his lawyer's objection "on the grounds of incrimination," and by the advice that he did not "have to answer," were in disregard of the court's ruling, and amount to an abuse of the privilege of cross-examination. But, if improper and objectionable upon the ground indicated, and objection to the questions or a motion to strike out or a request in some form for a ruling by the court should have been made. Counsel may not sit silently by, permit his adversary to propound improper questions, and afterwards charge the trial court with error of law in permitting the questions to be asked unless the failure of the court sua sponte to take notice of the alleged improper questions and exclude them amounts to an abuse of the sound discretion vested in the trial judge for the purposes of the conduct of a trial. The objection sustained by the presiding judge was susceptible of the interpretation that it was based on the ground that an answer to the question objected to would "incriminate other people." The subsequent questions were denuded of any point directed to the "incrimination of others," and whether the asking of those questions involved any infringement of the judge's ruling, as he understood and intended it should apply, is by no means clear. Nor is it clear that the defendant's objection was intended as anything more than a claim of privilege--that he was not bound to answer the question because an answer might tend to incriminate. The objection and the court's ruling thereon were apparently so construed by the solicitor, who proceeded upon the assumption that defendant's privilege of not answering did not bar the asking of the questions. In that view of the objection and the ruling it cannot be said that the assumption upon which the solicitor proceeded was so clearly erroneous as to charge him with knowledge of the impropriety of asking the questions. The privilege of not answering does not make the asking of the question improper, if the testimony sought to be elicited would be admissible but for the privilege claimed. The questions propounded elicited from the defendant categorical denials. We can perceive no sound basis for a conclusion that the trial court was guilty of such an abuse of discretion as should be held for reversible error. Exceptions 4 and 5 are therefore overruled.
The appellant's next contention (exception 6) is that the circuit judge committed prejudicial error in failing to charge that the facts and circumstances relied upon "to support the inference of guilt in a case resting on circumstantial evidence must be established beyond a reasonable doubt." That contention is predicated upon the following portion of Judge Townsend's charge:
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State v. Hester
...has made out his defense of alibi, they must give him the benefit of that doubt, and they must acquit him." In the case of State v. Stokes, 133 S.C. 67, 130 S.E. 337, which was affirmed in State. v. Chancey (S. C.) S.E. 824, it has been held that, while alibi is an affirmative defense (alth......
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State v. Biggs
... ... part of its case that the defendant was present at the scene ... of the crime, and actually committed it. The instruction ... complained of is substantially in harmony with the [192 S.C ... 52] principles announced in State v. Stokes, 133 S.C ... 67, 130 S.E. 337, and State v. Hester, 137 S.C. 145, ... 134 S.E. 885 ... The ... assignment of error appears to us to be hypercritical. The ... indictment charged that the defendant was present at the time ... and place, and committed the crime. The purpose ... ...