State v. Stokes, (No. 11861.)

• Court: United States State Supreme Court of South Carolina
• Writing for the Court: MARION
• Citation: 130 S.E. 337
• Parties: STATE. v. STOKES.
• Docket Number: (No. 11861.)
• Decision Date: 17 November 1925

130 S.E. 337

STATE.
v.
STOKES.

(No. 11861.)

Supreme Court of South Carolina.

Nov. 17, 1925.

[Ed. Note.—For other definitions, see Worda and Phrases, First and Second Series, Support.]

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.

MARION, J. 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 rec-

[130 S.E. 338]

ord of the trial below which is set out in the case as follows:

"Q. Will you tell me the truth if I ask you a fair question? A. Let's hear the question.

"Q. Ain't you been hanging around this and other stills in Kershaw county for several years—that's been your particular business, hasn't it? A. No, sir.

"Q. Well, a little bit of your business? A. No, sir.

"Q. Well, just a little, tiny, wee bit—just one time? A. No, sir.

"Q. All right, sir. Did you ever carry any liquor to Bethune? A. No, sir.

"Q. How about five gallons? A. No, sir.

"Q. Well, last Saturday night? A. No, sir.

"Q. Saturday night before that? A. No. sir.

"Q. Boontown—ever carry five gallons of liquor there—that is the town? A. No, sir.

"Q. Never carried it there? A. No, sir.

"Q. Saturday night a week ago? A. No, sir.

"Q. How much did you carry? A. I didn't carry any.

"Q. Ever carry any? A. No, sir.

"Q. Ever tote any liquor anywhere—Boon-town, Bethune, or anywhere else? A. No more than what I drink.

"Q. Did you ever carry any to your friends?

"Mr. Alexander: Now, your honor, if he answers that question, he could incriminate other people—ever carry liquor to any one. He doesn't have to answer that question, as it would be incriminating.

"The Court: Yes, sir.

"By the Solicitor: Q. Now your lawyer has raised the point that you don't have to answer on the grounds of incrimination, but ain't you been carrying liquor around this town and Kershaw, Boontown, you don't have to answer it? A. I say I haven't been.

"Q. How about five gallons of liquor? A. I said I haven't been carrying any.

"Q. At any time? A. At any time.

"Q. What did your lawyer raise the point that that would incriminate you.—Take the witness."

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. 2S0, 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, an 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...