Opinion
12394
March 12, 1928.
Before MANN, J., Lee, Spring Term, 1927. Affirmed.
Ramsey Atkinson was convicted of possessing liquor, and he appeals.
Mr. W.T. McGowan, for appellant, cites: Error to charge that "merely having in his possession was in violation of the law": 132 S.C. 238; 140 S.E., 97.
Mr. Frank A. McLeod, for respondent.
March 12, 1928. The opinion of the Court was delivered by
The defendant, Ramsey Atkinson, was charged with "having unlawfully in his possession certain alcoholic liquors," and was tried and convicted on this charge at the spring, 1927, term of the Court of General Sessions for Lee County. He appeals and imputes error.
The first exception is as follows:
"That his Honor erred in charging the jury that `merely having it in his possession was in violation of the law' — the error being that keeping in possession of contraband liquors involves more than the mere having in possession of such liquors, and that the keeping in possession means to have habitually in possession, which error tended to influence the jury in their finding against the defendant."
The charge in the indictment upon which the appellant was tried and convicted, was not storing or keeping in possession alcoholic liquors, but was having unlawfully such liquors in possession. Under this charge, the Court was not required to instruct the jury as to the law of storing or keeping or keeping in possession, or to define and explain the meaning of these terms, as no such issue was involved in the case. The cases cited by the appellant are therefore not in point. See Section 860 of the Criminal Code of 1922. State v. Twiggs, 123 S.C. 47; 101 S.E., 663.
The appellant's second exception is as follows:
"That his Honor erred in charging the jury as follows: `Any amount is contraband if it is not obtained or possessed in the manner allowed by the statute law of this State, which I have just defined to you' — the error being that the jury was led to believe that the mere possession of alcoholic liquors, regardless of the amount or the continuity of possession, was in violation of the law and, therefore, prejudicial to the defendant."
This exception is without merit. "If the act be unlawful a Court will not measure with nicety the quantity" of alcoholic liquors found in the possession of the wrongdoer, as a basis for determining his guilt. See State v. Tooley, 107 S.C. 408; 93 S.E., 132.
The exceptions are overruled, and the judgment of the Circuit Court is affirmed.
MR. CHIEF JUSTICE WATTS and MESSRS. JUSTICES COTHRAN, BLEASE and CARTER concur.