State v. Higgins , 215 S.C. 153 ( 1949 )

I regret very much that I am unable to agree with the majority opinion in this case. The second exception alleges error on the part of the Judge when he charged the jury as follows:

"If A goes into a store and meets the proprietor at the door; and the proprietor of the store says to him: `Show him a suit of clothes, and if he likes it, sell it to him.' If A likes the suit of clothes and buys it, pays B for it, B is the agent of the proprietor of the store, and the act of one is the act of the other. The proprietor or owner of the store may never see the money, never hear it clink in the cash-drawer, if in the due course of business it passes into his trade-cash and he is benefited thereby, he has participated as much as if he had himself put the money in the cash-drawer or in his pocket, himself. One or a dozen clerks may have participated in it. If it is done under his instructions, each one of them has participated in the act. If it were unlawful, each one of them would be guilty of violating the law. One or more persons being involved or engaged in an unlawful enterprise, such as making an unlawful sale of liquor, if two or more of them unite their efforts and participate in such sale, one would be as guilty as the other."

The trial judge was unfortunate in his selection of a hypothetical case, as a study will show that by substituting the word "whiskey" for the words "suit of clothes", Beckman for "A" and Parris for "B" and Higgins for "proprietor" in the hypothetical case charged and you practically have the case at bar. It has long been recognized that even a slight remark apparently innocent in its language may, when uttered by the Court, have a decided weight in shaping the opinion of the jury. Vested as a trial Judge is with superior authority, disinterested and possessing experience not available to the ordinary layman, juries, as a rule, are anxious to catch his view upon which to found their conclusions. SeeState v. Pruitt, 187 S.C. 58 and 196 S.E. 371 and the cases cited therein.

For the foregoing reasons, I am of the opinion that the charge was in violation of Article 5, Section 26 of the Constitution of 1895 which provides that judges shall not charge juries in respect to matters of fact, but shall declare the law and that the case should be remanded to the Court of General Sessions for Cherokee County for a new trial.