State v. Stello

The opinion of the Court was delivered by

Mr. Justice Pope.

The defendants named in the three above stated cases (which were tried separately, but are heard in this Court on appeal together, for convenience of the parties named as appellants), were tried before Judge Benet and a jury at the March, 1896, term of the Court of General Sessions for Charleston County, for maintaining a common nuisance, under the 22d section of what is known as the dispensary law of this State (21 Stat. at Darge, 736; also 22 Stat. at Darge, 139), and, after conviction, were duly sentenced.

They now appeal to this Court. Eet the exceptions taken in H. Stello’s case and the charge of the Circuit Judge in that case be reported. From these exceptions it will be seen that the first two thereof relate to the objections raised against the indictment. We have just disposed of similar objection to a similar indictment in the cases of the State against J. H. Beckroge, the State v. E. Perano, and the State against J. A. Bertucci, and we desire that our remarks there used shall be applied in each of the three cases now at bar. These exceptions are overruled.

We will now consider the charge of the presiding Judge, to see if it is liable to the exception that it is a violation of the 26th section of article V. of the Constitution of this State, adopted in 1895. The exact language of this section is as follows: “Judges shall not charge juries in respect to matters of fact, but shall declare the law.” It differs from the section in the Constitution of 1868 in the omission of a permission to the judges to “state the testimony.” See section 26 of article IV. of Constitution of 1868. The judgment of the Supreme Court of this State in the case of Norris v. Clinkscales, 47 S. C., 488, is controlling until modified or reversed in relation to the true construction of this section of our new Constitution. The charge of Judge Benet, when subjected to this test (Norris v. Clinkscales, supra), was in violation of this section, as is made evident by a comparison of that decision with his charge. In Norris v. Clinkscales, supra, it is said: “We are clearly of the opinion that under section 26, as it now reads, a judge may, in declaring the law applicable to the case, base that law upon hypothetical findings of fact by the jury, and instruct the jury that if they believe so and so from the evidence they have heard, then such and such will be the legal result. In so doing, if he be careful not to repeat any of the testimony nor to intimate, directly or indirectly, what is in evidence, he will be chargeable neither with stating the testimony nor in charging in respect to matters of fact.” Compare these words of the decision of this Court with what the Circuit Judge in his charge says after the testimony of the witnesses, Jones, Brabham, McCaffery, Dunu, Peterman, Newman, and who can fail to say that the Circuit Judge stated the testimony, for each of these witnesses had sworn to the facts, thus presented by the Circuit Judge in his charge to the jury, in an interrogative form. A very powerful mode of stating a fact by a skillful person .is this same interrogative mode of stating such fact. Indeed, it may be thus so presented as to become a living verity to the listener. We cannot so view this section 26 of article V. of our present Constitution, as permitting such a statement of the testimony in a case to the jury by the Circuit Judge. It follows, therefore, that this exception is well taken.

It is the judgment of this Court, that the judgment of the Circuit Court in each one of the three cases hereinbefore stated, as now before us on appeal, be reversed, and each of said causes be remanded to the Circuit Court for a new trial.

Justices Gary and Jones concur in result.