State v. Winter

• Decision Date: 16 July 1909
• Citation: 65 S.E. 209,83 S.C. 153
• Parties: STATE v. WINTER et al.
• Court: South Carolina Supreme Court

65 S.E. 209

83 S.C. 153

STATE v. WINTER et al.

Supreme Court of South Carolina

July 16, 1909

Appeal from General Sessions Circuit Court of Richland County.

E Winter and M. Winter were convicted of larceny, and they appeal. The appeal of M. Winter was abandoned, and judgment as to E. Winter affirmed.

John J Earle, for appellants. Christie Benet, for the State.

WOODS J.

The defendants were convicted at the summer term of the court of general sessions for Richland county, under an indictment charging them with the larceny of "certain pieces of brass pertaining to engines and machinery, and certain tools and other appliances," the property of the Southern Railway Company. Both defendants appealed, but at the hearing the appeal of M. Winter was abandoned.

The testimony tended to prove that four pieces, weighing in the aggregate 420 pounds, which had been taken from the yards of the Southern Railway Company in Columbia, were found in a car on the Atlantic Coast Line track; that this car had been engaged by E. Winter, who was having it loaded with junk from his shop on Gervais street in the city of Columbia; that the loading was done for the defendant E. Winter by the defendant M. Winter and two negroes; that the stolen brass pieces were found at the bottom of the car, covered by other junk and old rags. Both the defendants swore at the trial that they knew nothing of the brass pieces, that they did not come from E Winter's shop, and that they were not aware they were in the car, until the officers and detectives found them there. The negro laborers also testified to their ignorance of the stolen property being in the car, but one of them admitted that, on the promise of pay from an officer, he immediately went to where the brass pieces were, and found them.

The first exception assigns error in allowing the witness W. M. Morrison to testify to the statements made by E. Winter, the appellant, at the preliminary hearing. This is the account, appearing in the record, of the testimony and the objection. "Q. Do you know anything else about this case? A. We then arrested them, that is the police department arrested them; and E. Winter in the preliminary hearing claimed-- Mr. Earle: I object to that. E. Winter did not testify at the preliminary hearing. The Court: Unless he did-- Mr. Earle: Did he testify under oath? A. He certainly did. He accepted the responsibility; said his brother was working for him. Q. In loading this car? A. In the transaction of all the business; that his brother was only employed. Q. Including the loading of the car? A. Yes sir." The court expressly held, in the case of State v. Branham, 13 S.C. 396, that parol testimony as to the statements of the accused made at a preliminary is not admissible, where the evidence was taken down in writing by the magistrate; the written statement being the best evidence. Passing by the fact that there was no objection to this evidence, on the ground that the written statement taken down by the magistrate was the best evidence, the exception must fail for the stronger reason that the appellant himself admitted the correctness of the statement attributed to him by the witness Morrison. He was asked, "Did you say you would take the responsibility for that car?" and answered, "Yes, sir; that's my business; that's my car." The objection to the evidence of Morrison is not available to appellant as a substantial ground of appeal.

The...