October Term, 1920

10526

STATE v. CHARLESTON BRIDGE COMPANY.

(105 S. E. 349.)

CRIMINAL LAW-SENTENCE NOT INTERFERED WITH, WHERE DISCRETION NOT ABUSED.-The Supreme Court will not interfere with a Circuit Court sentence made under Cr. Code 1912, section 105, upon a conviction under section 618, which provides no punishment, where it is not made to appear that the fine is such as to shock the conscience of the Court, or virtually amounts to confiscation of the defendant's property, and where discretion was not abused.

Before GARY, J., Charleston, February term, 1920. Affirmed.

The Charleston Bridge Company was convicted for not keeping its bridge in proper condition, and appealed from such sentence. (113 S. C. 116.) The case was remanded to the Circuit Court for the resentence of the defendant. From such resentence the defendant appeals.

Mr. H. L. Erckmann, for appellant, cites: Affidavit of treasurer of Charleston Bridge Company should have been considered as a guide in determining the punishment to be imposed: 16 Corp. Jur. 1297; 2 Day 62. Fine should be "according to common usage and practice in this State:" Criminal Code 1912, section 105. Instances of usage and practice: Criminal Code 1912, sec. 598; sec. 615; sec. 645;

1 Civ. Code 1912, sec. 3232. Offense was at best a nuisance: 3 Hill 393; 39 S. C. 24; 2 Strob. 17. Nuisance having been removed Court may well dispense with the punishment: 90 S. C. 288.

Messrs. T. P. Stoney, Solicitor, and Smythe & Visanska, for respondent, cite: This Court did not declare the former fine excessive: 113 S. C. 116. But held that sentence was improperly imposed under sec. 618, Crim. Code 1912; and the new sentence should be imposed in accordance with the usage and practice in this State.

[113 S. C.-233]

December 20, 1920.

Opinion of the Court

The opinion of the Court was delivered by MR. JUSTICE WATTS.

This is an appeal from sentence imposed by his Honor, Judge Gary. The defendant was tried and convicted before his Honor, Judge Memminger, under section 618, Criminal Code 1912, and sentenced by Judge Memminger to pay a fine of $10,000, one-half to the informer and the other half to go to the Bridge Company. An appeal was taken from this sentence, and this Court reversed the sentence imposed by Judge Memminger, and remanded the case to the Circuit. Court for the resentencing of the defendant, in accordance with the provisions of section 105 of Criminal Code of 1912 of this State, 101 S. E. 657. His Honor, Judge Gary, in accordance with the mandate of this Court, resentenced the defendant to pay a fine of $3,000. From this sentence defendant appeals, and, by six exceptions made, imputes error on the part of his Honor. At the hearing, exceptions 5 and 6 were withdrawn and abandoned.

Exceptions 1, 2, 3, and 4 allege error on the part of his Honor in imposing a fine in excess of $500, on the ground that this is the maximum amount which is conformable to common usage and practice in the State, according to the nature of the offense committed by the defendant, and that the fine of $3,000 is excessive. The exceptions are overruled. It was a matter exclusively in the discretion of the Circuit Judge, and this Court will not interfere with sentences imposed by the Circuit Court, in such a case as this, unless it is made to appear that the fine imposed is such as to shock the conscience of this Court, or such as to virtually amount to a confiscation of property of the defendant. The sentence imposed by his Honor is not such a case, and we see no erroneous exercise of the discretion vested in the

October Term, 1920

Circuit Judge as to warrant us in interfering with the sentence imposed.

All exceptions are overruled, and judgment affirmed.

MESSRS. JUSTICES HYDRICK and FRASER concur.

MR. CHIEF JUSTICE GARY and MR. JUSTICE GAGE absent on account of sickness.

10552

STATE v. FEREBEE.

(105 S. E. 345.)

1. INTOXICATING LIQUORS-EVIDENCE HELD SUFFICIENT TO SUSTAIN CONVICTION FOR SELLING INTOXICATING LIQUOR.-In prosecution for selling intoxicating liquor, evidence held to sustain conviction.

2. WITNESSES EVIDENCE THAT STATE'S WITNESS WAS PAID FOR CONVICTIONS AND MADE CONTRADICTORY STATEMENTS COMPETENT.-In prosecution for selling intoxicating liquors, evidence that State's witness was to be paid for convictions and had made contradictory statements was competent to discredit the testimony of the witness.

3. CRIMINAL LAW-CREDIBILITY OF WITNESSES FOR JURY.-In prosecution for selling intoxicating liquor, the effect of testimony that State's witness was to be paid for convictions and had made contradictory statements held for jury.

4. CRIMINAL LAW-PERMITTING WITNESS TO STATE THAT HOPE OF REWARD FOR CONVICTION DID NOT INFLUENCE HIS TESTIMONY HARMLESS.—In prosecution for selling intoxicating liquors, action of Court in permitting State's witness to state that the hope of reward for the conviction of the defendant did not influence his testimony held harmless, since there was but one answer that could have been expected.

5. INTOXICATING LIQUORS-PRODUCTION OF LIQUOR NOT NECESSARY TO PROVE CORPUS DELICTI.-In prosecution for selling intoxicating liquor, production of the liquor was not necessary to proof of the corpus delicti, the unlawful sale, and not the liquor, being the corpus delicti.

Before PEURIFOy, J., Jasper, July, 1919. Affirmed. Charles Ferebee indicted for selling intoxicating liquor and on conviction, appeals.

Opinion of the Court

[115 S. C. Mr. Thomas E. Miller, for appellant, cites: Witness may be discredited by showing inconsistence in testimony at this and at former trial: 40 Cyc. 2708; 34 S. C. 16. Conviction supported only by testimony of accomplice may be set oside: 16 Corp. Juris 714; 11 S. C. 275. All present aiding or abetting are principals: 79 S. C. 73. Corpus delicti must be shown: 57 S. E. 956 (Ga.). Jury should be cautioned as to testimony of an accomplice, uncorroborated: 16 Corp. Juris 697; 29 S. C. 613; 34 S. C. L. 508. Insufficient corroboration: 16 Corp. Juris 703. Judge should guard against remarks or questions which may influence jury on facts: 63 S. C. 379; 81 S. C. 374; 84 S. C. 526; 87 S. C. 407. Self-serving declarations: Mill. 162; 16 Cyc. 1202.

Mr. George Warren, Solicitor, for respondent. Oral argument.

December 20, 1920.

The opinion of the Court was delivered by MR. JUSTICE FRASER.

The appellant was indicted for selling intoxicating liquor. This is the second trial. The State's witness, S. W. Sauls, testified as follows:

"Resident Jasper county; lived there on 17th June, 1917; knows defendant; went to his house on said date and tried to buy some whiskey; said he didn't have any, and went off and sent George Manigault, another negro, and he bought whiskey; rye; pine; silver money; forget how much; tasted whiskey; saw it bought; standing behind some bushes and saw through them; saw Manigault hand Ferebee some money; Manigault brought whiskey to me; sampled it; would make me drunk."

On cross-examination: "Was a witness in this case before; does not remember how much money he gave Mani

gault; does not answer question; says swore before he got paid for convictions; don't remember saying how much was to get; won't swear didn't say got $12.50; swore worked up ten cases; all negroes; doesn't remember saying had no definite employment; won't deny anything; drinks when feels like it; says doesn't remember what he swore to; doesn't remember how much received for ten cases; gets paid in addition witness fees in Court; doesn't know how much money collected from county as witness; 25 days would cover time he worked as witness; doesn't remember whether he said got dollar and half a day."

On redirect examination: "Says over objection of defendant that fact that he got paid for working up these cases would not have any weight in testifying as a citizen of county and man."

On recross-examination: "Says would not have worked up cases but for money in them; hired to do it; knew was going to be paid for it."

There are several exceptions, but they need not be considered in order.

1. The first question to be considered is the failure of the presiding Judge to grant a new trial, on the ground that there was not sufficient evidence to support a conviction.

This exception cannot be sustained. There is direct, 1-3 positive evidence that the defendant sold the liquor. Evidence that the witness was to be paid for convictions and made contradictory statements was competent to discredit the testimony of the witness. The evidence was introduced without objection. The effect of the evidence when admitted was a question for the jury, subject to the wise discretion of the presiding Judge to grant a new trial. We see no abuse of discretion in refusing of a new trial.