State v. Green , 61 S.C. 12 ( 1901 )

June 26, 1901. The opinion of the Court was delivered by The defendant was indicted, tried and convicted under an indictment containing three counts, for violating the dispensary law. In the first count, the defendant was charged with selling spirituous liquors, on the 8th of April, 1900, to certain persons named in that count. In the second count, the defendant was charged with unlawfully keeping and maintaining a nuisance, on the 8th day of April, 1900, and on divers other days, both before and since that day up to the taking of this inquisition, by keeping a place where liquors were unlawfully sold and where persons were permitted to resort for the purpose of drinking alcoholic liquors, and where alcoholic liquors were kept for sale. In the third count, the charge was that, on the 8th day of April, 1900, the defendant did unlawfully store and keep in his possession contraband spirituous liquors. From the judgment rendered the defendant appeals to this Court upon the several exceptions set out in the record, a copy of which will be incorporated by the Reporter in his report of this case.

The first and second exceptions relating to the same subject, will be considered together. They rest upon the allegation that the testimony of the witness, Henry Wilson, was incompetent. The point of the first exception is that the witness named was permitted to testify that he had bought whiskey on other days than the one named in the indictment. It is well settled that it is not necessary to prove the precise day on which the offense charged was alleged in the indictment to have been committed, unless time is of the essence of the offense charged, as it, clearly, is not here. See State v. Branham, 13 S.C. at page 392, and the cases there cited; which has been expressly recognized in the recent case of State v. Reynolds, 48 S.C. at page 385, as well as the still more recent case of State v. Prater,59 S.C. 271. As to the point made in the second exception, that the sale testified to by this witness might have been made after the finding of the indictment in this case, it may be said that this position rests upon conjecture only, for which there is not only no foundation in the "Case," but on the contrary the testimony there reported tends to show that the sale was made prior to the preliminary examination and hence, necessarily, prior to the finding of the indictment. These two exceptions must, therefore, be overruled.

The third exception, relating to the testimony of the witness, Floyd, can not be sustained for the reason that the defendant was not only charged with selling liquor to the persons named in the first count in the indictment, but was also charged, in the second count, with maintaining a nuisance, and in the third count, with keeping and storing contraband liquors, and the testimony of Floyd was quite pertinent to either of these two last charges, and was, therefore, competent; especially is this so where there was testimony tending to show that the defendant had the use and control of the adjoining room referred to in this exception.

The fourth exception raises the question of the competency of the testimony of Floyd: "that he thought he found a bottle of whiskey in the bureau drawer where he first saw defendant;" and it is claimed, as we infer (for no argument was submitted for defendant), that "he thought" implied that he was expressing an opinion merely and not stating a fact. We do not think so. On the contrary, it was a statement of fact as to which he was not certain. The fourth exception must be overruled.

The fifth exception is very clearly untenable. No authority is necessary to show that there was no error in ruling out the declarations of the defendant.

The sixth exception cannot be sustained. While it is true that Dave Alverson was not named in the first count of the indictment as one of the persons to whom the defendant had sold liquor, which may have rendered him incompetent to testify that he had bought liquor from the defendant, if he had been asked whether he had bought liquor from the defendant, but he was not asked any such question, nor did he undertake to give any such testimony. The fact that his name was not mentioned in the indictment did not render him incompetent to testify as to any fact tending to sustain either or both of the charges contained in the second or third counts of the indictment. Indeed, we see no reason why he was not a competent witness to prove that he saw the defendant sell liquor to any one or more of the persons named in the first count in the indictment, as the person to whom the defendant had sold liquor; but, as a matter of fact, he gave no such testimony.

The seventh exception imputes error to the Circuit Judge in permitting the witness, Alverson, to testify that he paid the defendant for allowing his furniture to remain in the adjoining room to that occupied by defendant. There was no error in this, as it was quite pertinent as tending to show that defendant had the control of such adjoining room, and thus competent to sustain the charges contained in the second and third counts of the indictment; as the adjoining room seemed to be the place where it was claimed that defendant kept his liquor. The seventh exception is, therefore, overruled.

The eighth and ninth exceptions, imputing error to the Circuit Judge in receiving the testimony of Walter Perry and A.L. Foster, being based upon the same ground, will be considered together. The first objection — that the names of neither of these witnesses appeared in the indictment — has already been disposed of by what has been said in considering the sixth exception; and the other objection — that the times testified to by these witnesses were other than the date specified in the indictment — is likewise disposed of by what has been said above. These exceptions must likewise be overruled.

The judgment of this Court is, that the judgment of the Circuit Court be affirmed.