State v. Manos , 179 S.C. 45 ( 1936 )

February 6, 1936. The opinion of the Court was delivered by In 1935, the General Assembly passed an Act (Act May 14, 1935, 39 St. at Large, 325) to legalize and regulate the manufacture, sale, possession, etc., of alcoholic liquors. It was approved by the Governor on May 14, of that year, and immediately went into effect. The tax commission was named and authorized to administer and enforce the statute; one of its duties being (Section 7) "to have prepared and distributed stamps suitable for denoting the tax on alcoholic liquors enumerated herein and said stamps and other stamps required under this Act shall be sold only to such persons as hold a valid wholesale license under the provisions of this Act." It was also provided (Section 11) that "any persons found in possession of any bottle or other package containing alcoholic liquor without having affixed the revenue stamps thereto, as required by this Act * * * shall be guilty of a misdemeanor," etc.; and (Section 17) "that any alcoholic liquors found in the possession of any one within this State not having affixed to the bottle or container the stamps required in this Act, as hereinabove provided, are hereby declared to be contraband," etc.

On September 30, 1935, the defendant Manos was tried in the County Court of Greenville County upon an indictment charging him with having in his possession certain contraband liquor, in violation of the statute above referred to. He was convicted as charged, and appeals from the judgment and from the sentence imposed upon him.

It is admitted that the appellant had in his possession about May 17, 1935, at his place of business in Greenville, S.C. approximately 175 gallons of liquor, mostly gin, all of which was in unstamped containers or packages; and that on May 20, this liquor was seized as contraband by officers of Greenville County. It also appears that on May 20, the defendant applied to the tax commission for a license as a liquor dealer in the County of Greenville, and that such license was issued him on May 23.

On trial of the case, it was agreed between defendant's counsel and the solicitor that an affidavit of W.G. Query of the tax commission, in order to save the necessity of his appearing in person, "might be used"; it being stated by the solicitor at the time that he would not concede that the affidavit had any bearing on the case as to relevancy, but that he would admit that Mr. Query would testify to what was stated in it if he were present. After it was read to the jury by Mr. Cothran, the solicitor moved to strike it out on the ground that it was irrelevant and immaterial. The trial Judge granted the motion, and his action in doing so is made an assignment of error.

We think that the solicitor should have objected to the admission of the affidavit before it was read to the jury or at the time it was being read. However, as the motion to exclude it was made immediately after it was read, we think, in the peculiar circumstances recounted, it was a matter within the sound discretion of the trial Judge But if it should be thought that we err in this, no harm was done the appellant for several reasons. The affidavit stated, in substance, that the defendant made application to the tax commission on May 20 for a license as a wholesale liquor dealer, and that such license was issued him on May 23; and that it was impossible for the commission to furnish stamps as soon as the Act was approved, but that they were furnished as soon as the commission could obtain them. The defendant himself testified that he received the liquor in question about May 17, and that it was unstamped and in his possession after the Act was approved by the Governor; and that some days after it was seized by the officers a license for the sale of liquor was issued him by the Commission.

The application for a license, however, or its issuance to the defendant by the commission, would have nothing to do with his admitted violation of the law, and was no defense to the charge made; and the argument that because the commission issued him a license to sell liquor after he was arrested, shows that he was a fit person for the business and should, therefore, be excused for having in his possession contraband liquor, is untenable and unsound. Also, while it is true that the state alone could furnish stamps to be affixed to the packages containing the liquor, such stamps could not be furnished until the commission had had reasonable time to obtain them; and the contention that the state is estopped to prosecute the defendant because it failed to furnish him stamps on application therefor is clearly, under the admitted facts, wholly without merit.

The appellant also complains of the refusal of the trial Judge to charge the jury, that before they could convict the defendant, they should be satisfied that he intended to violate the laws of the state in regard to the whisky involved in the case. This assignment of error cannot be sustained. No apt words are found or employed in the Act in question which indicate that intent is a necessary element of the crime charged; and when the defendant violated the provisions of the statute, by having in his possession contraband liquor, the offense was complete, regardless of motive or intent.

In 16 C.J., 76, the writer says: "As a general rule where an act is prohibited and made punishable by statute only, the statute is to be construed in the light of the common law and the existence of a criminal intent is to be regarded as essential, even when not in terms required. The legislature, however, may forbid the doing of an act and make its commission criminal without regard to the intent or knowledge of the doer, and if such legislative intention appears the Courts must give it effect, although the intent of the doer may have been innocent. This rule has been generally, although not quite universally, applied in the enforcement of statutes passed in aid of the police power of the state, where the word `knowingly' or other apt words are not employed to indicate that knowledge is an essential element of the crime charged. The doing of the inhibited act constitutes the crime, and the moral turpitude or purity of the motive by which it was prompted, and knowledge or ignorance of its criminal character, are immaterial circumstances on the question of guilt." See also, 8 R.C.L., 12.

The rule stated has been adopted and followed in this jurisdiction. State v. Reeder, 36 S.C. 497, 15 S.E., 544;State v. Assmann, 46 S.C. 554, 24 S.E., 673; State v.Westmoreland, 76 S.C. 145, 56 S.E., 673, 8 L.R.A. (N.S.), 842; State v. Duckett, 133 S.C. 85, 130 S.E., 340.

The appellant received a fair and impartial trial; his conviction was fully justified under the law and the admitted facts; and no good reason has been shown why the verdict of the jury should not be allowed to stand.

The judgment, therefore, of the Court below is affirmed.

MESSRS. JUSTICES CARTER and FISHBURNE concur.

MESSRS. JUSTICES BONHAM and BAKER dissent.