The opinion of the Court was delivered by-
Mr. Chief Justice McIver.
The defendant was tried under an indictment, containing three counts, for violating the statute usually known as the dispensary law. In the first count, the defendant was charged with selling- spirituous liquors to one W. R. Gainey, in violation of the first section of the dispensary law. in the second count, the charge is that the defendant, with certain other persons named therein (the defendant alone being on trial), did wilfully and unlawfully maintain and keep a certain place specified, where contraband alcoholic liquors were manufactured, sold, bartered and given away, and where persons were permitted to' resort to1 drink alcoholic liquors as a beverage, thereby keeping and maintaining a common nuisance. In the third count, the defendant, with others mentioned, did unlawfully and wilfully manufacture, sell, accept for unlawful use, and did store and keep' certain contraband alcoholic liquors. Upon this indictment the jury found the defendant guilty under the second count, and not guilty under the first and third counts. The defendant 'having been sentenced, appeals to this Court upon the several grounds set out in the record, which, together with the charge of the Circuit Judge, should be incorporated by the reporter in his report of this case.
[530]*5301 [529]*529It will be observed that the first, second and third exceptions all impute error to the Circuit Judge in charging upon the facts, in the several particulars therein mentioned. The manifest object of sec. 26, of art. V., of the Constitution is to invest the jury with the exclusive power ho pass [530]*530upon the facts of the case, without any interference whatever on the part of the Judge. If there could ■have been any doubt upon this subject prior to the adoption of the present Constitution, such doubt is effectually dispelled by the emphatic and mandatory language used in the present'Constitution: “Judges shall not charge juries in respect to1 matters of fact, but shall declare the law” — omitting the permission previously given in the Constitution of 1868, to “state the testimony” — which omission clearly shows that the purpose was to forbid the Judge, unquali-fiedly, from charging the jury “in respect to matters of fact,” and thus leaving such matters exclusively to the jury, unaided by any suggestions from' the Judge. This imperative mandate, found in the organic law of the land, this Court, even if disposed to do so, cannot and will not evade the responsibility of enforcing, whenever such mandate is violated. We proceed, then, to inquire whether this mandate has been disregarded in the present case. It is apparent, from an examination of the testimony set out in the “Case,” that there was direct conflict in the testimony as to several facts, which were not only “prominent” but material, and when the Circuit Judge in his charge instructed the jury as follows: “But if there be strong prominent facts in the case that every witness would see if he was there at all, and had the opportunity to1 see and observe them, when he swears against some one else, and they differ about the prominent main features of the case, then you may say, ‘Well, I cannot reconcile the statements of these two- men on the ground of common honesty, because this .is a circumstance that everybody would see and in this particular way, and would impress him in this particular manner if he was there; and one swears one way that one thing did not occur and another that it did occur.’ There you may say: ‘Well, I am unable to reconcile those seemingly contradictory statements; I will throw them aside, and while I cannot say that one or the other speaks falsely, I will throw them out of the consideration of the case, and will consider the other [531]*531facts as if these two men had not sworn so and so.’ So you are the judges of the facts” — he manifestly violated the provision of the Constitution above referred to. For it was certainly a charge “in respect to matters of fact,” which the Constitution expressly forbids. It is the exclusive province of the jury to weigh the testimony, and determine its force and effect, and when the Circuit Judge invaded that province and undertook to advise the jury how they might weigh the testimony, and whether any force and effect should be given to testimony1 which 'had been received as competent in a certain contingency, it undoubtedly was a violation of both the letter and spirit of the Constitution. The attempt of the solicitor to evade the force of this obj ection by the mere conjecture that the Circuit Judge did not mean what his language plainly imports, hut that he only meant to say that, in the supposed contingency, the jury might, temporarily, throw aside the testimony of the conflicting witnesses, and afterwards, having considered the other facts, determine the question upon a consideration of all the testimony in the case, must fail, because it not only rests upon pure conjecture, but because it involves the necessity of interpolating words in the charge which are not there, and totally destroying the plain meaning of words which are there; for to' give the charge the meaning suggested by the solicitor, would not only ignore but directly contradict these plain words in the charge: “I will throw them (the contradictory statements) out of the consideration of the case, and will consider the other facts as if these men had not sworn so and so,” which, if the English language means anything, must be regarded as meaning that the jury might utterly disregard all the conflicting testimony in the case, and form their conclusion only from the uncontradicted testimony. But we are not called upon to pass upon the correctness of the advice given to' the jury, but simply whether the Circuit Judge erred in giving any advice or suggestion to the jury as h> how they might deal with the facts; and hence we need not pursue this subject [532]*532further. The first, second and third exceptions must, therefore, be sustained.
2 The fourth exception, which imputes error to the Circuit Judge in one of his remarks as.to* circumstantial evidence, cannot be sustained. It is undoubtedly true that in a criminal case the guilt of the accused may be proved by either direct or circumstantial evidence, and it is equally true that in both classes of evidence the rule is the same as to' the necessity of satisfying the jury beyond a reasonable doubt of the guilt of the accused. But the exception seems to be aimed at-the omission to1 state to the jury that one of the rules as to circumstantial evidence is that the circumstances must be such as cannot be explained upon any other hypothesis than that of the guilt of the accused. While it is true that this is one of the rules laid down by standard authors, yet the practical effect of such rule is simply to raise a reasonable doubt of the guilt of the accused; and when the Circuit Judge said to' the jury, in speaking of circumstantial evidence: “In other words, circumstantial evidence is strong if it shows beyond all reasonable doubt, and to the exclusion of a reasonable hypothesis of the innocence of a prisoner, that a man is guilty,” he substantially recognized the rule; and if appellant ■ desired any more explicit statement of the rule, he should have submitted a request to that effect.
3 The fifth and only remaining exception, which imputes error in overruling certain testimony therein referred to, cannot be sustained.
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The opinion of the Court was delivered by-
Mr. Chief Justice McIver.
The defendant was tried under an indictment, containing three counts, for violating the statute usually known as the dispensary law. In the first count, the defendant was charged with selling- spirituous liquors to one W. R. Gainey, in violation of the first section of the dispensary law. in the second count, the charge is that the defendant, with certain other persons named therein (the defendant alone being on trial), did wilfully and unlawfully maintain and keep a certain place specified, where contraband alcoholic liquors were manufactured, sold, bartered and given away, and where persons were permitted to' resort to1 drink alcoholic liquors as a beverage, thereby keeping and maintaining a common nuisance. In the third count, the defendant, with others mentioned, did unlawfully and wilfully manufacture, sell, accept for unlawful use, and did store and keep' certain contraband alcoholic liquors. Upon this indictment the jury found the defendant guilty under the second count, and not guilty under the first and third counts. The defendant 'having been sentenced, appeals to this Court upon the several grounds set out in the record, which, together with the charge of the Circuit Judge, should be incorporated by the reporter in his report of this case.
[530]*5301 [529]*529It will be observed that the first, second and third exceptions all impute error to the Circuit Judge in charging upon the facts, in the several particulars therein mentioned. The manifest object of sec. 26, of art. V., of the Constitution is to invest the jury with the exclusive power ho pass [530]*530upon the facts of the case, without any interference whatever on the part of the Judge. If there could ■have been any doubt upon this subject prior to the adoption of the present Constitution, such doubt is effectually dispelled by the emphatic and mandatory language used in the present'Constitution: “Judges shall not charge juries in respect to1 matters of fact, but shall declare the law” — omitting the permission previously given in the Constitution of 1868, to “state the testimony” — which omission clearly shows that the purpose was to forbid the Judge, unquali-fiedly, from charging the jury “in respect to matters of fact,” and thus leaving such matters exclusively to the jury, unaided by any suggestions from' the Judge. This imperative mandate, found in the organic law of the land, this Court, even if disposed to do so, cannot and will not evade the responsibility of enforcing, whenever such mandate is violated. We proceed, then, to inquire whether this mandate has been disregarded in the present case. It is apparent, from an examination of the testimony set out in the “Case,” that there was direct conflict in the testimony as to several facts, which were not only “prominent” but material, and when the Circuit Judge in his charge instructed the jury as follows: “But if there be strong prominent facts in the case that every witness would see if he was there at all, and had the opportunity to1 see and observe them, when he swears against some one else, and they differ about the prominent main features of the case, then you may say, ‘Well, I cannot reconcile the statements of these two- men on the ground of common honesty, because this .is a circumstance that everybody would see and in this particular way, and would impress him in this particular manner if he was there; and one swears one way that one thing did not occur and another that it did occur.’ There you may say: ‘Well, I am unable to reconcile those seemingly contradictory statements; I will throw them aside, and while I cannot say that one or the other speaks falsely, I will throw them out of the consideration of the case, and will consider the other [531]*531facts as if these two men had not sworn so and so.’ So you are the judges of the facts” — he manifestly violated the provision of the Constitution above referred to. For it was certainly a charge “in respect to matters of fact,” which the Constitution expressly forbids. It is the exclusive province of the jury to weigh the testimony, and determine its force and effect, and when the Circuit Judge invaded that province and undertook to advise the jury how they might weigh the testimony, and whether any force and effect should be given to testimony1 which 'had been received as competent in a certain contingency, it undoubtedly was a violation of both the letter and spirit of the Constitution. The attempt of the solicitor to evade the force of this obj ection by the mere conjecture that the Circuit Judge did not mean what his language plainly imports, hut that he only meant to say that, in the supposed contingency, the jury might, temporarily, throw aside the testimony of the conflicting witnesses, and afterwards, having considered the other facts, determine the question upon a consideration of all the testimony in the case, must fail, because it not only rests upon pure conjecture, but because it involves the necessity of interpolating words in the charge which are not there, and totally destroying the plain meaning of words which are there; for to' give the charge the meaning suggested by the solicitor, would not only ignore but directly contradict these plain words in the charge: “I will throw them (the contradictory statements) out of the consideration of the case, and will consider the other facts as if these men had not sworn so and so,” which, if the English language means anything, must be regarded as meaning that the jury might utterly disregard all the conflicting testimony in the case, and form their conclusion only from the uncontradicted testimony. But we are not called upon to pass upon the correctness of the advice given to' the jury, but simply whether the Circuit Judge erred in giving any advice or suggestion to the jury as h> how they might deal with the facts; and hence we need not pursue this subject [532]*532further. The first, second and third exceptions must, therefore, be sustained.
2 The fourth exception, which imputes error to the Circuit Judge in one of his remarks as.to* circumstantial evidence, cannot be sustained. It is undoubtedly true that in a criminal case the guilt of the accused may be proved by either direct or circumstantial evidence, and it is equally true that in both classes of evidence the rule is the same as to' the necessity of satisfying the jury beyond a reasonable doubt of the guilt of the accused. But the exception seems to be aimed at-the omission to1 state to the jury that one of the rules as to circumstantial evidence is that the circumstances must be such as cannot be explained upon any other hypothesis than that of the guilt of the accused. While it is true that this is one of the rules laid down by standard authors, yet the practical effect of such rule is simply to raise a reasonable doubt of the guilt of the accused; and when the Circuit Judge said to' the jury, in speaking of circumstantial evidence: “In other words, circumstantial evidence is strong if it shows beyond all reasonable doubt, and to the exclusion of a reasonable hypothesis of the innocence of a prisoner, that a man is guilty,” he substantially recognized the rule; and if appellant ■ desired any more explicit statement of the rule, he should have submitted a request to that effect.
3 The fifth and only remaining exception, which imputes error in overruling certain testimony therein referred to, cannot be sustained. It appears from the “Case” that the defendant, while on the stand testifying as a witness in his own behalf, had stated, .voluntarily, that he had not sold any liquor since 1882, and on his cross-examination, over the objection of 'his counsel, he was asked this question: “Don’t you know that in 1883 you were indicted and in 1884?” and when the objection to> this- question was overruled, he was asked, “Didn’t you pay $200 in 1883?” to which he replied “No, sir.” Then some record was read to the witness, showing that he had paid $200, in [533]*533September, 1883. To which the witness replied, “I was indicted in 1882, sure.” In the first place, if this were error, it was harmless, for the witness might very well have paid a fine of $200 in 1883, under a prosecution commenced in 1882. Again, the defendant was not convicted in this case for selling liquor, and even if he had ’been indicted in 1882 for that offense, and convicted and fined in 1883, we do not see how that could affect the present case. It is contended, however, under this exception, that this testimony was an attack upon defendant’s character, when the same was not put in issue; and an attempt to1 prove that defendant was guilty of the offense charged by showing that on another occasion, many years before, he had been guilty of the same offense. As we understand it, the rule is that while a defendant in a criminal case is not compelled to testify, yet he may do so if he chooses; and when he becomes a witness, 'he is subject to the same incidents as any other witness; and hence his testimony may be assailed in any of the modes recognized by law. — State v. Robertson, 26 S. C., 117. There can be no doubt that it is permissible to' ask a witness on cross-examination any question tending to test the accuracy of his memory or his credibility, subject to the right of the witness to decline to answer a question tending to subject him to a criminal prosecution; and this was manifestly the purpose of the question objected to-, and, therefore, there was no1 error in overruling the objection. It does not appear that the witness declined to answer the question on the ground stated; and even if he had done so, we do not see how his answer could possibly have subjected him to a criminal prosecution for an act for which he had already paid the penalty. The fifth exception must be overruled.
■The judgment of this Court is, that the judgment of the Circuit Court :be reversed upon the ground first considered in this opinion, and that the case be remanded to' that Court for a new trial.