November 4, 1927. The opinion of the Court was delivered by This is an appeal from the Court of General Sessions for Dorchester County. At the October, 1926, term of said Court, the appellant, a white man, and Dave Boyd, Negro, were tried jointly before J. Henry Johnson, presiding Judge, and a jury, upon an indictment charging them, under separate counts, with violations of the prohibition law, one of such counts charging "storing" by appellant and his co-defendant, the other charging them with "having alcoholic liquors in possession for unlawful purposes."
The jury having returned a verdict of guilty as to both defendants, they were duly sentenced by the Court, and, from such sentence and judgment the defendant, Louis Smoak, alone, appeals.
There are five exceptions. Exceptions 3 and 4 were abandoned at the hearing.
Exception 1 is overruled, as it was within the discretion of his Honor, and he did not erroneously exercise that discretion.
Exception 2 is as follows: It was error for the Court to have charged: "The State, as I understand it, has a charge against Louis Smoak, in effect, that he stored whiskey at the home of David Boyd, and that David Boyd continued to store it for him," when the indictment simply charged Louis Smoak and David Boyd jointly with having whiskey in their possession and storing the same, and to so have charged was a charge upon the facts of the case, and had the effect of conveying to the jury the Court's opinion of the facts, to the effect that Louis Smoak, the appellant, took whiskey to the home of *Page 41 David Boyd, and David Boyd stored, and continued to store, the whiskey for the appellant, as David Boyd had thus testified. This exception must be sustained as a charge on the facts, as his Honor must have got his information from the testimony. The indictment did not charge that the liquor was stored in the house of David Boyd, but Boyd testified to that.
Exception 5 is overruled, as his Honor did not confuse the jury as to the form of the verdict. The second exception is sustained, and a new trial granted.
MESSRS. JUSTICES COTHRAN, BLEASE, STABLER, and CARTER concur in result.