State v. Tooley

• Decision Date: 06 July 1917
• Docket Number: 9733.
• Citation: 93 S.E. 132,107 S.C. 408
• Parties: STATE v. TOOLEY ET AL.
• Court: South Carolina Supreme Court

93 S.E. 132

107 S.C. 408

STATE v. TOOLEY ET AL.

No. 9733.

Supreme Court of South Carolina

July 6, 1917

Appeal from General Sessions Circuit Court of Greenville CountyErnest Moore, Judge.

W. R Tooley and Fleet Cantrell were convicted of storing alcoholic liquors, and they appeal.Affirmed.

The exceptions follow:

I.That his honor erred in overruling defendants' motion for a new trial upon the ground that the evidence was not sufficient to support a conviction of storing, it being submitted that the evidence disclosed that on three occasions during the period of six months only a very small quantity of liquor was found on defendant's premises, and the jury should have acquitted the defendants on the charge of selling and keeping a place where persons were allowed to resort showed that there was no unlawful purpose in so storing.

II.That his honor erred in giving the defendants a straight chain gang sentence; it being submitted that his sentence under this charge should have been in the alternative.

James H. Price, of Greenville, for appellants.

J Robert Martin, Sol., of Greenville, for the State.

GAGE J.

The indictment charged: (1) A sale of alcoholic liquors; (2) the maintenance of a nuisance where persons resorted to drink such liquors; and (3) the storing of such liquors.The verdict was, guilty of storing.The judgment was, service on the public works without the alternative of a fine.

There are two exceptions.Let them be reported.

1.We may not infer as a matter of law that the discovery of a very small quantity of liquor in the defendants' safe on three separate occasions within a period of six months did not amount to storing.

The law is directed at unlawful storing.The chief element of the wrong is the unlawfulness of the act, the intent of him who has the liquor.

If the act be unlawful, a court will not measure with nicety the quantity the wrong-minded had in his safe.The defendant Tooley admitted "that he frequently kept a small quantity of whisky at his place of business for his personal use."Had the keeping been really for personal use, the defendant would probably not have limited himself to a "small quantity."The jury was best able to infer from the circumstances, if that little was for the proprietor, or for his customers.

2.The courts have, under the Constitution, "power, in their discretion, to impose sentence of labor upon highways, streets and other public works, upon persons by them sentenced to imprisonment."Const. art. 5, § 33.Did the court have the power to sentence the defendants to imprisonment, without the alternative of a fine?

The act of 1916(29 Stats. 704) undertakes to...