State v. Atterberry , 129 S.C. 464 ( 1924 )

October 22, 1924. The opinion of the Court was delivered by The facts as claimed by the State are as follows:

"The defendant-appellant, David G. Atterberry, was tried at the special term of the Court of General Sessions for Aiken County, on the 13th day of July, 1923, on an indictment charging violation of the Prohibition Law, in that, the said defendant-appellant was transporting and had in his possession contraband liquors.

"The jury found a verdict of guilty, on the count charging the defendant with having in his possession contraband liquors, and the presiding Judge sentenced the defendant to five months' hard labor on the public works of Aiken County.

"The case arose out of the following circumstances, to wit: On the morning of December 16, 1922, Deputy Sheriffs Robinson and Shepherd were on their way to Aiken from Warrenville, and passed the defendant on the public highway, going toward Warrenville from the direction of Aiken. It had rained the night before, and the defendant's automobile track was the only one that had passed along the road since the rain. The Deputy Sheriff noticed where the automobile had been turned around, where an old road led into the woods, and, suspecting that something was wrong, followed a man's track to where the automobile stopped, some distance into the woods, where it led to a gallon jug with a quantity of whiskey in it. Deputy Sheriff Robinson left Shepherd to watch this jug, and came on to Aiken. Later in the day, he returned to the place where he had left Shepherd, and saw Shepherd and the defendant-appellant coming out of the woods with the jug of whiskey. While Robinson was gone, Deputy Shepherd saw the defendant return in an automobile to the place, and leaving the automobile near the road went in the woods near where the jug was left, and picked up two more gallon jugs, which were full of whiskey, and started back to the automobile. After the defendant had walked a few steps with the whiskey, Deputy Shepherd hailed him with these words: ``Well, Dave what do you say now?' When Shepherd hailed him, the defendant struck the two jugs together and broke them, and the whiskey was spilled on the ground. In answer to Shepherd's inquiry as to whether he had broken the jugs, the defendant replied: ``The first thing I thought of was the evidence.' The defendant admitted then, and afterwards at the Courthouse, in the presence of Sheriff Howard, that it was his whiskey, and that he had paid $10 a gallon for it."

The appellant pleaded not guilty and denied making a confession. He claimed that he went into the woods to attend to a call of nature and saw the jugs of whiskey and picked them up in mere curiosity, and when the officer called to him he dropped the jugs and they broke. The appellant was convicted of having whiskey in his possession and makes this appeal.

I. The appellant was riding with a man named Delvin. When Delvin was on the stand, the appellant's attorney asked him: "For what purpose did Mr. Atterbury leave the car at that turn in the road?" The Solicitor objected, and the objection was sustained. This is the first assignment of error.

It cannot be sustained. The only way Mr. Delvin could know the purpose of Mr. Atterberry was from statements made by Mr. Atterberry. These statements were obviously incompetent. The purpose of a man is locked up within him and, when necessary to be established, then it is for the jury to determine as an inference from the facts proven. Of course, the defendant himself can testify as to his purpose, but he is the only one who knows.

II. The State was permitted to show in reply a confession by the defendant. The presiding Judge allowed the State to offer evidence as to the confession, but gave the defendant the right to offer testimony to the contrary. This was entirely proper.

III. The defendant moved the Court to require the Solicitor to make the opening speech to the jury before the defendant's attorneys were required to make their arguments. This was refused. This was error. Rule 59 of the Circuit Court is very clear and reads:

"The party having the opening in argument shall disclose his entire case and on his closing shall be confined strictly to a reply to the points made, and authorities cited by the opposite party."

It is difficult to see how a stronger statement could have been made. It would require a case of unquestionable authority and clearness to warrant a contrary holding.

State v. Garlington, 90 S.C. 144, 145; 72 S.E., 564, is not such a case. The quotation made by the State is followed by these words, "But no such question is presented here," and the quotation is a mere dictum. The wisdom of this rule is seen most clearly in a case in which the State relies upon circumstantial evidence. It may be that the circumstances are to all appearances disconnected, and yet an able prosecuting attorney, but for this rule, would be able to present a connection, little suspected by the defendant or his counsel. If the prosecuting attorney is allowed to reserve his argument for the closing speech, the defendant will not be allowed to show any defect in the chain of evidence. The authorities quoted by the prosecution, however inapplicable to the case, must be passed without a chance of review. The rule is clear and mandatory and a departure from it reversible error.

IV. Counsel for the defendant were criticized for defending in so plain a case. This also was error. The guilty are entitled to be heard by counsel. Attorneys cannot convict their clients before the trial.

V. The sixth and seventh exceptions cannot be sustained. There was no charge on the facts, but only an admonition to the jury to find a just verdict.

VI. The next assignment of error was in failure to charge the defendant's second request. It was substantially charged. This applies to the last exception.

The judgment is reversed, and a new trial ordered.

MR. JUSTICE WATTS concurs.

MR. ACTING ASSOCIATE JUSTICE W.T. AYCOCK concurs in result.

MESSRS. JUSTICES COTHRAN and MARION dissent.

MR. CHIEF JUSTICE GARY did not participate.