At the September, 1945, term of the Court of General Sessions for Anderson County, the appellant was tried, convicted and sentenced on an indictment which charged the unlawful possession on July 11, 1943, of alcoholic liquors, that is, alcoholic liquors which did not have South Carolina revenue stamps affixed to the container and containers thereof. We parenthetically call attention to the fact that the appellant having been sentenced to "be confined at hard labor upon the public works of Anderson County, or in the State Penitentiary for a period of six (6) months", was sentenced under Section 1848 of the Code, whereas if the conviction is to stand, she must be sentenced in accord with Section 1841 of the Code in that the indictment charged merely ordinary possession and did not charge possession for an unlawful purpose. State v. Pickett,47 S.C. 101, 25 S.E. 46.
When this case was orally argued, although the issue was not raised by the exceptions, the writer hereof inquired of counsel for the State and the appellant if, at the time this case was tried, the Court of General Sessions had jurisdiction, or if exclusive jurisdiction did not lie in the magistrate's court, in the light of Act No. 212, of the Acts of 1945, scheduled to become effective on July 1, 1945, but approved May 7, 1945.
Counsel thereafter agreed that the Court could consider the jurisdictional issue raised; and of course, this Court, without the consent of counsel, could have done so ex meromotu.
In the beginning, the writer hereof was of the opinion that the saving clause contained in Section 26 of the Act of 1945 was intended to preserve only the right to prosecute for *Page 82 a violation of the inhibitory statutes against the illegal possession of alcoholic liquors occurring prior to the effective date of the Act of 1945, even in cases where the prosecution had been commenced prior to such effective date, but not actually tried until thereafter. This opinion was based upon logic in that it would be a travesty on justice for a court in one case to have the power, upon a conviction, to sentence a defendant under the provisions of either Section 1841 or Section 1848 because the crime had been committed on a former date, and in another case where the same crime had been committed at a later date, have to hold that it did not have jurisdiction to try the case in that an inferior court had exclusive jurisdiction by reason of the penalty then provided therefor. However, we must bow to the language used, and not undertake to legislate. Section 26 discloses a purpose on the part of the Legislature to keep the Code provisions in force with respect to offenses committed prior to the 1945 Act, when prosecutions had been commenced. And if the Code provisions are considered in force as to prior offenses we cannot separate those provisions into penalty provisions and prohibitory provisions, and say that the latter are kept in force and the former are not. If that had been the intention of the Legislature, the sweeping terms of the Section under discussion would not have been used.
The language of Section 26 appears to be all-inclusive; it specifically says that all Acts and parts of Acts which are inconsistent with the 1945 Act "shall remain in full force and effect. * * *" There are no qualifications, except that the quoted words are referable to a "prosecution for any violation * * * occurring prior to the approval of this Act. * * *"
This view is probably emphasized when it is seen that Section 26 not only thus extends to every prosecution for violations occurring prior to the 1945 Act, but specifically extends also to the collection and enforcement of license taxes and surety bonds, and the confiscation and forfeiture of property, and the granting of licenses, etc. *Page 83
Having purged our system of the foregoing, we now come to the issues raised by the exceptions. We consider it necessary to discuss but two of them (1) Should a verdict of not guilty have been directed; and (2) Was it prejudicial error for the trial Judge to permit the witness, Tom Cowan, to testify on behalf of the State under the guise of reply testimony.
It is an admitted fact that liquor was found by the officers of the law when a search was made, in containers which did not have affixed thereto South Carolina revenue stamps, and that the greater portion of such whiskey was found in the residence unconcealed, and a small portion thereof concealed, on the premises. It is also an admitted fact that the residence and premises just referred to was owned by and occupied by the appellant and her two brothers. (There is no explanation in the record of why a prosecution was brought against the appellant alone.) Some of the other surrounding facts and circumstances will be referred to in our discussion of the alleged error in permitting the witness, Cowan, to testify "in reply", but since in our opinion the trial Judge committed error in this respect, and a new trial must be granted to the appellant, we refrain at this point from a further statement of the facts.
This case, on the first issue, is governed, considering all of the testimony, by State v. Atkins et al., 192 S.C. 110,5 S.E.2d 576, wherein it is said:
"We are unable to differentiate between one owner and occupant, and five owners and occupants. The trial Judge would have been compelled to submit the case to the jury under this testimony had the home and dwelling been owned and occupied by only one person, and such person was on trial charged with illegal possession of liquor."
The State had the right and privilege to prosecute any one, or all of the owners and occupants.
The testimony of the State's witnesses was to the effect that the officers of the law made their search of the residence *Page 84 and premises hereinbefore referred to between 10 and 10:30 o'clock on the morning of July 11, 1943, and that when they reached there, the appellant, one of her brothers, another woman (unidentified by the officers), some children, and Tom Cowan were at a table eating; that in the search which followed, they found in a bed room two jars of liquor at the foot of the bed, no attempt having been made to conceal same; and on the outside of the house "right side of the house" in the grass a pint of liquor was found. Immediately after this liquor was found, and while the officers were at the place of the search and seizure, Tom Cowan stated to the officers that the liquor had been brought there by him and was his; and the appellant disclaimed any knowledge of its presence, and denied ownership.
While the testimony of the State's witnesses as to the statement of ownership by Cowan and the disclaimer of any knowledge thereof by the appellant was brought out upon the cross-examination of the officers of the law testifying in behalf of the State, we consider this immaterial, because if the Solicitor representing the State knew of these facts, it was his duty as quasi-judicial officer of the Court to present a complete picture of the entire situation and disclose any information that had come to his attention, be it against or in favor of the defendant upon trial. In State v. Bethune,104 S.C. 353, 89 S.E. 153, the Court, through Mr. Chief Justice Gary as its organ, said:
"The theory of the law is that the duties of solicitor arequasi-judicial, and that, while it is more especially made his duty to conduct the prosecution so as to present the facts upon which the State seeks a conviction, nevertheless the duty rests upon him to see that no act on his part shall prevent the prisoner from having a fair and impartial trial. The State does not desire a conviction in any case unless the prisoner has been accorded those rights that entitle him to a fair trial. When the assistant solicitor heard the witness, McFadden, testify differently, from the statements which he had already made, it was his duty to bring such *Page 85 facts to the attention of the solicitor, in order that he might take such steps as might be necessary to enable the prisoner to have a fair trial."
As a sidelight, see also the case of State v. Parris,163 S.C. 295, 161 S.E. 496.
At the conclusion of the testimony of the appellant, the only witness for the defense, Tom Cowan who had been available throughout the trial, was called as a "reply witness" for the State, and over the strenuous objection of the appellant's counsel was permitted to contradict the testimony of the State's witness on a very material issue in the case; and on more or less an immaterial portion of the appellant's testimony. (The appellant had also testified that at the time the liquor was found in the house and on the premises occupied by her and her brothers, Cowan claimed it, and that she had denied any knowledge of its being there.)
While ordinarily the admission and rejection of proffered testimony is largely in the discretion of the trial Judge, yet there is a salient rule of evidence that a party litigant will not be permitted to directly and for that purpose offer testimony to contradict his own witness or witnesses; and that was precisely what the State was permitted to do in this case and in a most adroit manner. Cowan was permitted to testify that the liquor found in the appellant's house and on the premises was not his liquor, although the Solicitor did not ask him whether he had claimed to be the owner of the liquor at the time of the raid of search. However, under the circumstances, a denial of the ownership of the liquor found, was just as effectively a denial of his statement to the officers of the law who had testified for the prosecution that the liquor was his, Cowan's, as if he had been allowed to testify categorically that he had not made the statement to the officers, and was therefore in reply to the testimony of the State and contradictory of the State's witness. If this testimony as to the ownership of the liquor involved was not offered by the State for the purpose of contradicting its *Page 86 own witnesses, then it was as irrelevant as though an utter stranger residing at a remote distance and who had never even heard of the appellant had been offered in reply to testify that the liquor did not belong to him. At no point in the testimony of the appellant did she undertake to say that the liquor was owned by Cowan. The most that she would say under cross-examination was that he had claimed it, but at the same time denied that she had any knowledge of it.
While not discussing the other exceptions. we do not deem it amiss to remark that it is highly improper to directly require one witness to pass upon the truth or untruth of a statement attributed to another during the course of the trial, although a witness can of course say whether a statement had or had not been made, and can give a different version of what had occurred.
The foregoing was written as and for the opinion of the Court, but in that the dissenting opinion of Mr. Justice Oxner becomes the prevailing opinion, which prevailing opinion relies largely upon the case of State v. Harmon, 79 S.C. 80,60 S.E. 230, an excerpt from which is quoted in the prevailing opinion, we are forced to remark that the Harmoncase cannot be controlling when consideration is given to the facts of the case being decided. The appellant in her testimony carefully avoided stating that the whiskey found upon the premises was that of the witness, Tom Cowan, and had positively stated that Tom Cowan had not brought the whiskey there on the day before when he arrived. It was incumbent upon the State to prove beyond a reasonable doubt that the appellant was in the unlawful possession of this whiskey, and it was not her duty to offer evidence as to whom it belonged. We cannot conceive of any evidence the appellant could have offered in reply to Cowan's belated disclaimer of the ownership of the whiskey involved except cumulative testimony.
For the reason above stated, the appellant should be granted a new trial, and the case remanded to the Court from whence it came for that purpose.
TAYLOR, J., concurs. *Page 87