Town Council v. Owens , 61 S.C. 22 ( 1901 )

June 29, 1901. The opinion of the Court was delivered by Each of the defendants was separately indicted by the town council of Cross Hill, S.C. for selling, within the limits of said town, intoxicating liquors. The defendant, J.E. Spearman, entered a plea of guilty when brought before the intendant of said town and charged with such crime, but the defendant, Dr. J.M. Owens, entered a plea of not guilty. At his trial he was the only witness sworn, and he testified that, "He sells malt for medical purposes. Sold one glass of cider, but found that it contained too much alcohol and decided not to sell any more cider. Sold some of DeWitt's stomach bitters. Instructed Reed, his clerk, not to sell more than a bottle of malt to one man at a time for medical purposes." Whereupon the defendant, J.E. Spearman, was sentenced by the said town council to pay a fine of $50, or in lieu thereof thirty days imprisonment in the county jail of Laurens, S.C. And the defendant, Dr. J.M. Owens, was ordered to pay a fine of $50, or be imprisoned for thirty days in the county jail of Laurens, S.C. From these several judgments the defendants appealed to the Court of General Sessions for Laurens County. When the said appeals came on to be heard by his Honor, Judge W.C. Benet, he passed a short order dismissing the appeal in each case, and remanded each of the defendants to the lower court to enforce its judgment in each case.

Each of the said defendants has appealed to this Court. We need not set out the grounds of appeal, so far as J.E. Spearman is concerned, for he plead guilty, and there is no complaint as to his sentence being beyond the limits of the law. He cannot be heard to complain now.

One of the grounds of appeal presented by Dr. J.M. Owens goes to the root of the matter of his conviction, viz: that he was required to give testimony while he was on trial for a crime. Sec. 17, of art. I., of our State Constitution, provides: "* * * nor shall he be compelled in any criminal case to be a witness against himself." He was the only witness sworn. While we do not express any opinion as to the effect of his testimony, still we are bound to reverse the judgment against him on the ground that he was compelled to testify against himself. Because the defendant made no objection to his being sworn and no objection as to his testifying, does not alter his constitutional right. A man might subject himself to punishment for contempt, if he objected to testifying when forced or called upon to do so. It is not in accord with the orderly administration of justice to swear a defendant as a witness against himself in any Court; indeed, as we have seen, the Constitution forbids it. If a defendant asks to be sworn when charged with a crime, that presents a different question, he certainly may be sworn as a witness in his own behalf. But in the case at bar, the defendant was the only witness sworn for the prosecution, and it does not appear that he asked to be sworn. There must be a new trial as to Dr. J.M. Owens.

The judgment of this Court is, that the judgment of the Circuit Court as to the defendant, J.E. Spearman, be affirmed.

It is the judgment of this Court, that the judgment of the Circuit Court as to the defendant, Dr. J.M. Owens, be reversed.