State v. Atterberry

Supreme Court of South Carolina

Decided October 22, 1924

Supreme Court of South Carolina · decided 1924-10-22

Good law ✅— No negative treatment on recordhow we know

Decided 1924-10-22

How this case has been cited

Cited by 3 later decisions — most recently April 2018

3 state decisions

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

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Mr. Justice Cothran

¶1 (dissenting) : I do not at all agree to the proposition that the party who is entitled to the opening and reply in argument is required by rule 59 of the Circuit Court to advance in opening every reason that his mind may suggest to convince the Court or jury of the fact he desires to establish, at the risk of being denied the right to urge them in reply.

¶2 An experience of over 40 years at the bar convinces me that the universal interpretation of this rule confines it to propositions of law, and that it is not applicable to arguments of facts from the evidence; and if it should be considered that such an interpretation is not warranted by the terms of the rule, I should unhesitatingly declare that to the extent indicated in the opinion of Mr. Justice Fraser the rule is void as obstructive to the administration of justice.

¶3 The penalty imposed by the rule for not disclosing “his entire case” in opening is conclusive that matters of law and not of fact were referred to: “And on his closing shall be confined strictly to the points and authorities cited by the' opposite party”

¶4 In the case at bar there was no contest over the law; the issues were of fact alone; the evidence before the Court was susceptible of the guilt or innocence of the accused; it was both direct and circumstantial, and a person of reasonable intelligence is obliged to have been aware of the contention of the State.

¶5 It was clearly within the discretion of the Court to allow the Solicitor to waive the opening argument, which could have contained no disputed question of law, and reserve his fire upon issues of fact to the reply.

¶6 *476 The ground of objection to the remarks of the Solicitor is too trivial to demand a reversal.

Mr. Justice Marion concurs.

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Case posture

Posture: Before RICE, J., Aiken, January, 1923. Reversed and new trial ordered.David G. Atterberry was convicted of having possession of liquor and he appeals. The exceptions follow: (1) The Court erred, it is respectfully submitted, in sustaining the objection made by the Solicitor to the following question: Q. For what purpose did Mr. Atterberry leave the car at that turn in the road? The error being that it was competent to show by the witness what the defendant left the car, for, and the question was not based upon hearsay, but a matter within the knowledge of the witness and vital to the issue, it being contended by the State that he left the car to get the whiskey. (2) The Court erred, it is respectfully submitted, in allowing the witness Howard to testify, as in reply to a confession alleged to have been made by the defendant, to the effect that the defendant had given $10 for the liquor; it being respectfully submitted that a confession is testimony in chief, and not in reply. (3) The Court erred, it is respectfully submitted, in sustaining the Solicitor in his refusal to make an opening statement or argument to the jury, it being respectfully submitted that the burden was on the State to establish the guilt of the accused and the defendant was entitled to hear the position of the State, in view of the fact that the defendant had no way of replying or answering the charge in the argument. (4) The Court erred, it is respectfully submitted, in allowing the Solicitor to say, in argument, that he had rather dig stumps for the members of the jury in their fields than ask the jury to acquit a man as guilty as the defendant, said argument being extremely prejudicial and tending to ridicule counsel, whose duty it was to present the defendant's theory of the case, and whose client had a right to have the issue passed on without having his counsel ridiculed, especially so when no right to reply was allowed defendant's counsel. (5) The Court erred, it is respectfully submitted, in allowing the Solicitor to say, over the protest of defendant's counsel, Just at the other Court a man was turned loose who had two gallons of liquor in his house, and never a guiltier man has been tried in this Court, and, again, when defendant's counsel protested and asked the aid of the Court in an effort to try this case on its own facts, They are just interrupting me, the Court saying, He can draw his inference in the case, said argument being highly prejudicial and the ruling of the Court being erroneous because the Solicitor cannot draw inferences not founded upon the testimony in the particular case, and it was highly prejudicial to draw an inference from a case in which the testimony showed the defendant's house contained two gallons of liquor, for in that case the jury could have properly acquitted him if he was not there or knew nothing about it; but in the instant case the issue was whether the defendant knew the container had liquor in it, and the inference drawn from the former case was to ridicule the defense in the instant case, and went to the jury with the approval of the Judge as a denunciation of the jury trying the former case, which was prejudicial in this case. (6) The Court erred, it is respectfully submitted, in charging as follows: Gentlemen, it is none of your business what the sentence might be in this case, but all you are here to determine is whether or not the State has made out a case against this defendant beyond a reasonable doubt, and when you have done that, the State cannot ask more at your hands, and the defendant should not ask any more. A jury that is going to try a case on sympathy or prejudice should not stay in the jury box, said charge being an expression of opinion that a sentence would follow their verdict when the jury had determined whether or not the State has made out a case against this defendant beyond a reasonable doubt. Such language, when coupled with the statement that the state could ask no more, and that a jury that is going to try a case on sympathy or prejudice should not stay in the jury box, clearly indicating that a sentence, if the case was not tried on sympathy and prejudice, would result on their verdict, for if the jury had found for the defendant, no sentence would have been imposed. (7) The Court erred, it is respectfully submitted, in charging that he cannot turn his head and let some one put whiskey in his automobile in jugs or bottles, and then say he did not know it was liquor. If that was true, a man could come in here and say, `I did not know it was liquor,' said charge being, in effect, an expression from the Court that the defendant did know the container he had in his hand contained liquor; whereas, in truth and fact, if the defendant had turned his head and liquor was put in his car, he could say that he did not know it was liquor, and if the jury believed him the jury would be bound to acquit him; but the charge here excepted to so thoroughly ridicules the defendant's plea as to prejudice his defense before the jury. Said charge was violative of the constitutional inhibition against trial judges charging with respect to matters of fact. (8) The Court erred, it is respectfully submitted, in refusing to charge the principle of law announced in the second request, to the effect that the defendant would not be guilty of having possession of liquor unless he knew, or as a man of ordinary prudence and good sense should know, that his possession was liquor, said request stating a sound principle of law, applied in all cases involving guilty knowledge or criminal intent. (9) The Court erred, it is respectfully submitted, in refusing to charge the jury as follows: Mr. Williams: But if he did take it into his possession, and did retain it, and exercised common sense and did not know it was liquor until he dispossessed himself of it, then he is not guilty, said charge containing a sound proposition of law involving guilty knowledge, as well as guilty intent. The Court says: I am not going to charge that, Mr. Williams, there is no evidence here of that, said charge being erroneous in that it was an expression of opinion from the Court that there was no evidence on that point, when the record shows that that was the gist of the defendant's defense, and said refusal to charge being a refusal to lay down the principle of law that went to the issue that defendant was fighting, namely, guilty knowledge and guilty intention.

Source: CourtListener

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Supreme Court of South Carolina

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