State v. Brandon , 210 S.C. 495 ( 1947 )

The opinion of Mr. Justice Stukes correctly decides the first and second questions involved in this appeal, but I cannot agree with his disposition of the third question. His opinion sets out all three questions.

All trial lawyers experienced in defending (and prosecuting) defendants charged with the commission of crime are acutely aware of the unreliability of the testimony of some of the "officers of the law," who seemingly go into Court prepared to either procure a conviction of the defendant, or assure his acquittal. (The writer has, however, encountered other law enforcement officers who would not deviate from the truth for the purpose of procuring a conviction, and making more probable a severe sentence.) And I would venture to believe that a majority of the trial Judges are also aware of the fact that quite often small details which are damning to the defendant and quite unnecessary to a conviction, are gratuitously supplied by the class of law officers first above referred to. In the instant case, it made no material difference whether the liquor found in the appellant's grocery store was sitting on the floor of his office, or on top of his desk, where the appellant said he had placed it. And it is incredible that the appellant would have asked his clerk to claim the liquor when he knew or should have known that such a request would be overheard by one of the searching officers. The appellant did not hesitate to admit the ownership of the whiskey.

Accepting as true in detail the testimony in behalf of the State, it is my opinion that the sentence imposed was excessive, unreasonable and unduly severe, and in violation of Section 19, Article 1, of the Constitution, which provides, "Excessive bail shall not be required, nor excessive fines imposed,nor cruel and unusual punishments inflicted, * * *" (Emphasis added.)

In State v. Davis, 88 S.C. 229, 70 S.E. 811, 34 L.R.A. (N.S.) 295, it was held that this Court has no jurisdiction on appeal to correct a sentence on the ground that it is excessive, where it is within the limits prescribed by law for the discretion of the trial Court, and is not the result of partiality, prejudice, oppression or corrupt motive. See also Statev. Bowman, 137 S.C. 364, 135 S.E. 360; State v. Johnsonet al., 159 S.C. 165, 156 S.E. 353; State v. Bolin, 209 S.C. 108,39 S.E.2d 197; and numerous other cases.

In the case of State v. Phillips, 193 S.C. at page 275,8 S.E.2d 626, 627, (cited in the opinion of Mr. Justice Stukes), where the identical question which now confronts the Court was raised, this Court refused to interfere with the sentence imposed under the facts of the case, and the reasonable inference to be drawn therefrom stating, "It does not appear to us that the punishment here `was excessive, unreasonable, and unduly severe'." Of course, in that case, as in this, no partiality, prejudice or corrupt motive was shown, so when the foregoing language was used by the author of that opinion, and the other members of the Court then sitting (including that eminent and outstanding jurist, the Honorable L.D. Lide, acting Associate Justice) concurred therein, necessarily it was decided no oppression had been shown.

Here we have a substantial and hard working citizen of York County who is married, and has seven children. The entire family live under one roof, and in addition thereto, the wife of a married son. The opinion of Mr. Justice Stukes gives in detail the places of business owned and operated by the appellant, and the alleged purpose for which he had temporarily placed this small quantity of whiskey in his grocery store — a purpose not inherently unlawful.

At most, so far as the record discloses, the temporary storing of this small quantity of whiskey unconcealed, whether it was on the floor or on the desk, in the appellant's office of his grocery store where he checked on all three places of his business, while unlawful, was a technical violation of the law, and not such a violation as the legislature had in mind in enacting the statute. It was probably for this reason, and to cover just such a case as we now have before us, that not even a minimum punishment for the violation thereof was provided, the punishment being within the discretion of the trial Judge.

I assume that the intent of the framers of our State Constitution in inserting the clause thereof under discussion, was to bridle the judicial as well as the legislative branch of the government, where the legislature left the punishment for statutory crime to the discretion of the Court, and that therefore, Article 1, Section 19, cannot be lightly brushed aside.

It is my opinion that to compel the appellant to serve the sentence imposed, under the circumstances of this case, would be oppressive, and in violation of the Article and Section of the Constitution hereinbefore cited; and that the sentence imposed should be set aside, and the case remanded to the Court of General Sessions for York County for a resentence of the appellant to either pay a reasonable fine, or be placed on the public works for York County or in the State Penitentiary for a reasonable time. But I can see no reason for unnecessarily humiliating the appellant and his family.

TAYLOR, J., concurs.