State v. Goodall

69 S.E.2d 915, 221 S.C. 175, 1952 S.C. LEXIS 83

• Court: Supreme Court of South Carolina
• Decided: March 10, 1952
• Docket: 16600
• Status: Published

Opinions

Stukes, Justice:

This appeal is upon a single exception which is as follows : “That the order of the Hon. G. Duncan Bellinger ordering appellant to serve one year and six months for the charge for which he was convicted is excessive under the facts and circumstances of this case.”

The record before us consists of copies of the indictment, the sentence of eighteen months confinement in the penitentiary at such labor as appellant can perform, the order admitting him to bail pending appeal and the following fully quoted statement, to all of which counsel agreed in writing that it should constitute the Transcript of Record for appeal.

“The appellant was convicted in his absence on the 29th of May, 1951, before the Honorable G. Duncan Bellinger, Presiding Judge of the 5th Judicial Circuit, and a jury, at the Richland County Court House, Columbia, S. C., of the charge of unlawful possession of liquors in his place of business. He was found not guilty of the second and final count of the indictment, charging him with willfully and unlawfully receiving and keeping in his place of business liquors for unlawful use.

“The Honorable G. Duncan Bellinger, on June 2, 1951, by sealed sentence, sentenced the appellant to such hard (sic) labor as the appellant may be able to perform in the State Penitentiary for a period of one year and six months.

“Thereafter when the appellant was apprised of his conviction, he surrendered himself to the Sheriff of Richland County.

“The appellant thereupon moved that he be let to bail, and the Plonorable G.¡ Duncan Bellinger, with the consent of the Honorable T. P. Taylor, Solicitor, granted said motion, and the appellant duly complied with the terms of said order and is now out on bail pending the final determination of this appeal.

“Thereafter, and- in the time required by law, appellant served written notice of intention to appeal to this Court from the order of the Honorable G. Duncan Bellinger sentencing the appellant to the State Penitentiary for a year and six months, said Order being dated June 2, 1951.”

Prom the foregoing only are “the facts and circumstances of this case” derivable. (The quotation is from the above quoted exception. Appellant transgressed Rule 8, sec. 7, of this court by arguing alleged facts which do not appear in the record and cannot be considered.) They disclose nothing to evoke the rare jurisdiction of this court to interfere with the exercise of the discretion of the trial judge in the imposition of sentence upon a defendant who has been found, or has pleaded, guilty of the commission of crime. A recent, rare example is State v. Kimbrough, 212 S. C. 348, 46 S. E. (2d) 273, reference to which should be had for review of earlier authorities.

The controlling question here presented is whether the facts show manifest abuse of discretion, which it is very clear must be answered in the negative and the judgment affirmed.

Similar unsuccessful appeals from comparable sentence for violation of the same or a like statute are State v. Phillips, who pleaded guilty, 193 S. C. 273, 8 S. E. (2d) 626, and State v. Brandon, 210 S. C. 495, 43 S. E. (2d) 449.

Appellant at bar was convicted of the possession and storage of alcoholic liquors in his place of business (his “store house,” quoting from the indictment) which was not a licensed liquor store, which was in violation of subsection (c) of section 1842 of the 1946 Code Supplement. Subsection (i) (2) prescribes that the penalty in such a case shall be fine or imprisonment in the discretion of the Court of General Sessions. For possession anywhere of unstamped liquor (subsection b), for employment in the liquor business of a minor (subsection d), and for drinking on the premises of a liquor establishment (subsection e), all of which are apparently less serious crimes, the penalty is stipulated in subsection (1) as a fine of not over $100.00 or imprisonment of not over fifteen days, which is within the jurisdiction of a magistrate. On the other hand, it is seen that the violation of which appellant was convicted is exclusively within the jurisdiction of the Court of General Sessions, which may impose a fine or imprisonment in its discretion. Appellant could hardly have expected leniency in the form of suspension or probation when he failed to attend his own trial.

It was said in State v. Steadman, 216 S. C. 579, 59 S. E. (2d) 168, 182, certiorari denied, 340 U. S. 850, 71 S. Ct. 78, 95 L. Ed. 623, as follows: “It is the established rule in this state that this court has no jurisdiction on appeal to correct a sentence alleged to be excessive, when it is within the limits prescribed by law for the discretion of the trial judge, and is not the result of partiality, prejudice, oppression, or corrupt motive. State v. Phillips, 215 S. C. 314, 54 S. E. (2d) 901; State v. Scates, 212 S. C. 150, 46 S. E. (2d) 693; State v. Kimbrough, 212 S. C. 348, 46 S. E. (2d) 273; State v. Gregory, 198 S. C. 98, 16 S. E. (2d) 532.” And the following was quoted with approval from the Scates case\ “An exhaustive definition of the phrase ‘abuse of discretion’ would be difficult, if not impossible. Each case must be determined with reference to its own peculiar facts. The exercise of a sound judicial discretion must and should be performed in every case with a conscientious regard for what is just and proper under the circumstances. It does not appear here that the trial court’s discretion was exercised arbitrarily, or for reasons clearly untenable or unreasonable.” [212 S. C. 150, 46 S. E. (2d) 695.]

The judgment is affirmed.

FiSHBURNE'and Oxner, JJ., concur. Baker, C. J., and Tayeor, J., dissent