State v. Fisher , 206 S.C. 220 ( 1945 )

The second count in the indictment on which the appellant was tried, convicted and sentenced is in the following language: "That Jack Fisher on the 11th day of March, 1944, in the County of Greenville and State of South Carolina, did willfully and unlawfully store and keep in his possession two and one-half gallons alcoholic liquors which did not have South Carolina revenue stamps affixed to the container and containers thereof, against the form of the statute in such case made and provided and against the peace and dignity of the State."

Prior to entering upon the trial, the appellant demurred to and moved to quash the indictment as to the second count "on the ground that it does not fully inform the defendant of the charges placed against him by alleging the place of storage". This motion was refused, and is the basis of appellant's first exception.

Article I, Section 18 of the Constitution of 1895, provides that "in all criminal prosecutions the accused shall * * * be fully informed of the nature and cause of the accusation; * * *." Section 1003 of the Code of 1942 reads in part: "Every indictment shall be deemed and judged sufficient and good in law which, in addition to allegations as to time and place, as now required by law, charges the crime substantially in the language * * * of the statute prohibiting the same, or so plainly that the nature of the offense charged may be easily understood; * * *."

The twofold purpose of the statute in requiring the indictment to allege the "place" of the commission of the crime is to lay jurisdiction of the court, and inform the accused of the county in which he is charged with the violation of the law. The indictment in this case complies with the requirement of the law. In this connection, see State v. Colclough, 31 S.C. 156, 9 S.E., 811; State v.Burbage, 51 S.C. 284, 28 S.E., 937.

Following the refusal of the trial judge to quash the indictment as to the second count, the appellant moved the court to require the State to amend this count "by alleging reasonably definite the place where the whiskey is alleged to have been stored (in the County), reasonably close to the proof" relied upon. This motion was likewise refused.

The granting and/or refusal of this motion was in the sound discretion of the trial judge. The record does not disclose that he abused his discretion, that is to say, the record does not disclose that the appellant was prejudiced or suffered any surprise in the final placement of the alleged storage by the testimony.

The next question presented by this appeal is: Did the trial judge err in allowing testimony as to previous offenses alleged to have been committed by the appellant in the possessing, storing and selling of whiskey four and five months prior to the date of the alleged commission of the offense for which the appellant was being tried; and in permitting Deputy Sheriff Patterson, a witness for the State, to testify that for a period of six months preceding the trial of the appellant (on May 4, 1944), he had had occasion to go to appellant's home on an average of once every two weeks?

The offense of storing and keeping in possession unstamped liquor involves the idea of continuity of habit.Town Council of Easley v. Pegg, 63 S.C. 98, 41 S.E., 18.State v. Burns, 133 S.C. 238, 130 S.E., 641. Evidence of former possessions of unstamped whiskey over a not too remote period is relevant to the issue of continuity. We quote from State v. Shumpert, 195 S.C. 387, 11 S.E.2d 523,526:

"The rule excluding evidence that accused committed other offenses is subject to a number of exceptions and limitations, as where such evidence tends directly or fairly to prove his guilt of the crime charged, or to connect him with it, or to rebut the defensive theory or a special defense, or to establish the absence of mistake or accident, or where the crime charged and the other offense are closely related or connected; and evidence otherwise competent to establish accused's guilt of the crime charged is not inadmissible because it incidentally tends to prove him guilty of another crime. 22 C.J.S., Criminal Law, § 683, p. 1089; State v.Gregory, 191 S.C. 212, 4 S.E.2d 1; State v. Lyle, 125 S.C. 406,118 S.E., 803, 807; 20 Am. Jur., § 310, p. 289. * * *

"In a prosecution for possessing whiskey, it is not error to admit evidence showing, or tending to show, that on other occasions, not too remote, both before and after the date of the offense charged in the accusation, the defendant possessed whiskey. Such evidence is relevant to show intent, motive, knowledge, design or plan, and as showing circumstances corroborative of the evidence relating to the transaction charged in the accusation upon which the defendant is being tried. 22 C.J.S., Criminal Law, § 691n, pp. 1152, 1153. And see cases cited in note."

The appellant had not put his reputation in evidence. The sole purpose for which testimony as to the frequent visits of a law enforcement officer to the home of the appellant could have been offered was to create in the minds of the jury that the appellant's reputation for dealing in whiskey, and having in his possession and storing whiskey, was bad. Conceding that appellant probably had a bad reputation as to dealing in whiskey, yet, as aforesaid, he had not placed his reputation in evidence, and it was therefore error to allow the State to in this manner attack his reputation. And we cannot say that it was harmless error, although disregarding this evidence there was sufficient testimony on which the jury could have found a verdict of guilty. This testimony could have carried considerable weight with the jury in its deliberations. If it could have reasonably influenced the jury as a whole, or any member thereof, then it was not harmless error.

In State v. Phillips, 194 S.C. 46, 9 S.E.2d 32, 33 (the defendant in that case having been convicted of unlawfully storing alcoholic liquors), this court had occasion to remark that "the fact that a great number of searches of appellant's premises were made is no evidence of his guilt." This being so, then testimony of frequent visits of Deputy Sheriff Patterson to appellant's home and premises could have no probative value, and was merely a subterfuge to get before the jury the reputation of this appellant.

We are aware of the fact that the courts have been prone to pass lightly over errors of law committed in the trial of defendants charged with violations of statutes governing the control of intoxicating liquors, but the established rules of admissibility of testimony should be followed in every case, irrespective of the offense charged. Accordingly, we are constrained to hold that the admission in evidence of the testimony of Deputy Sheriff Patterson as to the number of times he had occasion to go to or had gone to appellant's home constituted reversible error.

This case should be reversed and remanded for a new trial.

MR. ASSOCIATE JUSTICE TAYLOR concurs.