Florence v. Berry , 61 S.C. 237 ( 1901 )

July 23, 1901. The opinion of the Court was delivered by These two cases, being both prosecutions for violations of an ordinance of the city of Florence, forbidding the sale of spirituous liquors within the corporate limits of said city, were heard and will be considered together, as the most of the questions presented by the appeals are common to both. We propose to consider these questions in the order in which they are considered in the argument of the counsel for appellants.

Exceptions one, two and three raise a jurisdictional point and may be considered together. The point made is that the affidavits upon which these prosecutions were based, purport to have been sworn to before the city clerk of Florence, an officer who it is claimed has no authority to administer an oath. Assuming, without deciding, that the city clerk has not been invested with power to administer an oath, we think that the jurisdictional point is not well taken. It must be remembered that jurisdiction is of two separate and distinct kinds: 1st, jurisdiction of the subject, or, as it is usually phrased, of the subject matter. 2d, jurisdiction of the person, and very different rules apply, where the question is as to the jurisdiction of the subject, from those which are applicable where the question is as to the jurisdiction of the person. In the former the question of jurisdiction cannot be waived by any act or admission of the parties, for the very obvious reason that the parties have no power to invest any tribunal with jurisdiction of a subject over which the law has not conferred jurisdiction upon such tribunal. Hence the common expression, "Consent cannot confer jurisdiction." But in the latter the rule is very different. The party may, by consent, confer jurisdiction overhis person, or may waive the right to raise the question, whether the proper steps prescribed by law for obtaining such jurisdiction have been taken, as is illustrated by the familiar instance of a party who, though not served with a summons, appears and answers, and is thereby precluded from afterwards raising the question as to whether the court had acquired jurisdiction of his person. See Martin v. Fowler, 51 S.C. at page 171; Rosamond v. Earle, 46 S.C. 9. Now in this case it is quite clear that the mayor's court had jurisdiction of the subject — a violation of one of the ordinances of the city — and it is equally clear that the appellants have waived any right they may have had to raise the question as to whether such court had acquired jurisdiction of their persons by appearing before said court and defending the cases. The case of the State v. Mays, 24 S.C. 190, referred to both by the Circuit Judge and counsel for appellants, has been misconceived, and really has no application to the question raised by the exceptions we are now considering. That case arose in 1885, prior to the compilation of the Revised Statutes of 1893, and the sections there referred to are designated by the numbers affixed to them by the Gen. Stat. of 1882. For example, the section there referred to as sec. 830 is now, in the Revised Statutes of 1893, sec. 19 of the Criminal Statutes, 2 Rev. Stat., 268; and sec. 2501 there referred to, is now sec. 166 of Criminal Statutes, 2 Rev. Stat., 323; while sec. 2507 there referred to is now sec. 176 of the Criminal Statutes, 2 Rev. Stat. 326. The objection made in the case of State v. Mays supra, to the affidavit, was not like the one here made — that the affidavit was not sworn to before an officer competent to administer an oath, but the objection there made was to the allegations contained in the affidavit, which under sec. 830 of the Gen. Stat. 1882 (now sec. 19 of the Crim. Stat. of 1893) served as the information, or indictment, so to speak, brought against the defendant; and the objection there made was that the allegations made in the affidavit left it doubtful, to say the least of it, whether the defendant was charged with a violation of sec. 2501 of the Gen. Stat. of 1882 (now sec. 166 of the Crim. Stat., 1893), of which the trial justice would have no jurisdiction, or whether he was charged with a violation of sec. 2507 of the Gen. Stat. of 1882 (now sec. 176 of the Crim. Stat. of 1893), of which the trial justice would have had jurisdiction. But as the Court held that the language used in the affidavit more properly brought the prosecution under sec. 2501 rather than under sec. 2507, it followed necessarily that the trial justice had no jurisdiction. It will thus be seen that the point decided in State v. Mays was very different from that presented here; for there can be no doubt that the language used in the affidavit did constitute a charge against the appellants, which the municipal court unquestionably had jurisdiction to try. The fact that the affidavit upon which the warrant was issued was not sworn to before a person authorized to administer an oath (if such be the fact), while it might have led to very serious consequences, if the appellant had seen fit to resist arrest, and might have justified the appellants in defying arrest under such unauthorized warrant (State v. Wimbush, 9 S.C. 309) ; but where a party charged with a criminal offense sees fit to make no resistance to arrest, and voluntarily subjects his person to the jurisdiction of the court before which he is called to answer for the offense charged (as was the case here), we are unable to perceive how any defect in the warrant or in the affidavit upon which it was issued can affect the merits of the issue presented by the charge made against him. The first, second and third exceptions must, therefore, be overruled.

The fourth exception makes the point that, in the case against the appellant, Berry, there was no proof of the venue, as to the charge of selling whiskey to J.S. Dale. The testimony was that the witness bought the whiskey from Berry, "Back of Mr. Stackley's place of business, near a pump in a room." If the jury knew that the place indicated was within the lines of Florence County, and within the corporate limits of the city of Florence, that would be sufficient proof of the venue. State v. Williams, 3 Hill, 91, was a case very much like the present; for the testimony was that the liquor was bought at defendant's store, without stating where the store was situated. The Circuit Judge charged the jury that "Whether the defendant's store was within Marion District or out of it, was an inference of fact for them to decide. That it was not indispensably necessary for the witness to have said, in so many words, `it is within the district,' if the truth were so, it is enough; and if the jury knew the place described to be within the district, that was enough." This charge was approved by the Court of Appeals, in express terms. This case was recognized and followed in the case of State v. Dent, 6 S.C. 383, in a case of murder. To the same effect, see State v. Vari, 35 S.C. 175. The fourth exception is overruled.

Exceptions fifth and sixth may be considered together, as they both make the point that there was a variance between the allegations and the proof. To make such a point effective, it is necessary to show that the variance is material, but here the variances alleged are as to the kind and amount of whiskey sold, and this is manifestly immaterial. The offense consists of the sale of "any spirituous, malt, alcoholic, vinous or other intoxicating liquors or liquids," and it matters not what may be the particular kind or name of such liquors. These exceptions are overruled.

The judgment of this Court is, that the judgment of the Circuit Court, in each of the cases above named, be affirmed.