State v. Brandon

BAKER, CJ., and TAYLOR, J., dissenting in part. June 23, 1947. Appellant was tried at the April 1946 term of the Court of General Sessions for York County upon an indictment, returned at the preceding September term, which charged the unlawful possession in appellant's place of business, other than a licensed liquor store, of one quart and one pint of whiskey and one pint of rum. Upon conviction he was sentenced to labor for a term of eighteen months, upon service of half of which the balance will be suspended, and he is thereupon placed on probation for a period of five years. He appeals upon exceptions which raise the following questions, as stated in the brief:

1. Did the Presiding Judge err in charging the jury, where the defendant was indicted for having alcoholic liquors in his place of business, "That all parts of one's place of business, including rooms, closets, stairs, yards or courts used in connection with the place of business are a part and parcel of the place of business," when the testimony showed that the whiskey in question was in the private office of the defendant?

2. Could the Court impose under the law a sentence that was not in the alternative?

3. Did the Court abuse its discretion in imposing a sentence of eighteen months, upon the service of nine months thereof, that the balance be suspended, and the defendant placed on probation, and was such sentence excessive, unreasonable and unduly severe?

All issues of fact were concluded against appellant by the verdict of guilty but the following statement of the evidence is necessary for proper consideration of the exceptions.

Appellant operated three business establishments in the town of York, one he called in testimony a beer and grocery business on Roosevelt Street, a retail liquor store on Main Street and in the same block with the latter was his other grocery store and meat market. It was in this latter store that the seized liquor was found at about 9 o'clock on the night of August 10, 1945. He kept his place open from 6 a. m. until 12 midnight. He testified that he visited his liquor store shortly before closing time, sundown under the law, and sold to himself the whiskey and the rum, paid for it and registered the sale, and then took it to his nearby grocery store intending to later take it to his home for anticipated celebration of the Japanese surrender which was imminent and he thought might occur by the following Sunday.

A state law enforcement officer and a rural policeman for York County had meanwhile obtained a search warrant applicable to his grocery store. They went there and the state officer began to search while the local officer watched appellant and his clerk. The state officer went almost directly to the office of the store, which was partitioned off in the left rear and contained a desk, adding machine, etc. The bottles of whiskey were in a paper bag, the rum unwrapped, and all were in a large carton or container on the floor of the office. The county officer testified that he heard appellant tell his clerk to claim the whiskey as his, but when the clerk was asked to describe it he did not do so accurately and afterward appellant admitted that the whiskey was his and that he had placed it in his store office temporarily.

The first assignment of error relates to what constitutes a place of business in which it is unlawful to store intoxicants. The challenged instruction is the same as that approved in the case of State v. Shumpert,195 S.C. 387, 11 S.E.2d 523. See also State v. Phillips, S.C.,42 S.E.2d 339.

The statute, subsection (c) of Section 14 of Act No. 211 of May 7, 1945, 44 Stat. 337, 352, is as follows: "(c) It shall be unlawful for any person to store or have in possession any alcoholic liquors in his, her or its place of business other than a licensed liquor store. A place of business shall be, and include, any place where goods, wares, or merchandise are sold or offered for sale, or distributed, and also places of amusement. A place of business shall also include residences and transportation vehicles when sale of any merchandise is made therefrom. A place of business shall also include outbuildings, warehouses and garages, when adjacent to or used in connection with any place of business where any goods, wares or merchandise are sold, or offered for sale, or distributed therefrom."

It is noted that the law expressly includes in a "place of business" outbuildings and other appurtenant structures. The office room where the liquor was found in this case was within and a part of the store, entered by a door from the salesroom. Under these circumstances it cannot be reasonably contended that it was not an integral part of appellant's place of business, under the plain terms of the statute. This consideration requires that appellant's first question be overruled.

The second and third questions are both concerned with the nature and severity of the sentence, and will be considered together.

The cited section 14 of the Act of 1945 provides in subsection (i) (2) for violation of the above quoted subsection (c) a fine or imprisonment in the discretion of the court. Appellant contends that this contemplates a sentence in the alternative, a fine or imprisonment. But the Act does not say so. The point was decided adversely to appellant's contention in State v. Davis, 86 S.C. 208, 68 S.E. 532, cited with approval in State v. Phillips, 193 S.C. 273,8 S.E.2d 626.

Section 1038 of the Code of 1942 is invoked. It provides that where the punishment for crime is not prescribed by statute, the court shall pass such sentence as is conformable to the usage and practice in this State, according to the nature of the offense, and not repugnant to the constitution. The pertinent constitutional provision, Article I, Section 19, is to the effect that excessive fines shall not be imposed, nor cruel and unusual punishments inflicted. We cannot say that the sentence of eighteen month's imprisonment, with half suspended, offends the constitution or the statute. In State v. Phillips, supra, 193 S.C. 273,8 S.E.2d 626, the offense was storage in defendant's filling station of six half pints of similar, taxpaid liquor. The sentence upon guilty plea was for two years' imprisonment (then the statutory maximum) with sixteen months suspended, so that service of eight months of the sentence was required, which was found not to be excessive, unreasonable or unduly severe. See generally, State v. Bolin, 209 S.C. 108,39 S.E.2d 197. The appellant here conducted a retail liquor store duly licensed, which required familiarity with the law which he flouted when he took liquor from his liquor store, required by law to be closed at sundown, and placed it in the office of his grocery store which he kept open until midnight.

We find no merit in the exceptions and they are overruled.

Judgment affirmed.

FISHBURNE and OXNER, JJ., concur.

BAKER, CJ., and TAYLOR, J., concur in part and dissent in part.