The watchman and southron. [volume] (Sumter, S.C.) 1881-1930, 1897-04-14

out tuC IS4 uiott0 otohPo "" 'uS
contrary the charge is that the de-
fsndant unlawfully stored certain
contraband LIQUOR In the second
place an examination of the dis
pensary law of 1896 fails to disclose
any provision making. it an indictable
ofense for person to have liquor in
his possession without the stamps of
1.-The State on it There are several
provisions in that act making such
LIQUOR liable to seizure and forfeiture.
but none declaring that the mere fact
that person is fouud in possession
of alcoholic liquors without stamps
shall constitute criminal offense.
The sections of the act, which it
is contended sustain this prosecution
are the lst, the 25th, the 26th and
35th, and these sections are consider
ed in the opinion of the chief justice
After quoting the first section he
says that it is divided into two DIS
tinct parts ; the first part makes it a
penal ofense to do any of the acts
therein forbidden, while the second
part was intended to rende. the
liquors referred to liable to seizure
without warrant aud to forfeit
them In other words the first sen
tence affects persons only and not
property, while she second affects
property and not persons 1t is clear
that the person charged must not
only have manufactured, sold, bar
tered, exchanged, received or ac
cepted, stored or kept in his posses
sion spirituous liquors. but must
have done go for some unlawful pur
pose for that is not only the proper
grammatical construction of the Ian
guage. but alsc such a construction
is necessary to relieve the officers
charged with the duty of storing and
keeping Of splrituous liquors from
the penalties prescribed While the
evidence shows that the liquor in
question was kept in the defendants
dwelling house there is not evidence
tending to show that it. was kept for
unlawful use On the contrary, the
evidence is that he kept it believing
that it was necessary for his bodily
health. Unless, therefore. the act
contains some provision making it
unlawful to drink or otherwise use
for his own personal benefit or graft
fcation any spirituous liquors not
Obtained from the dispensary or not
containing the stamps of the State
commissioner il is obvious that one
essential element Of the ofense
charged is lacking. The act will be
searched in vain for any such provi.
sion, and hence it cannot be said that
keeping and using any spirituous
liquors for ones own personal use or
qualification constitutes any ofense
againststhe criminal laws of the State
The 25th section is quoted and Mr.
Justice McIver holds that it does not
even purport to create any criminal
offense but deals only with the seiz.
ure and forfeiture of ccntraband
liquor. Indeed the proviso recog-
nizes the legality of the possession
of certain liquors which are not
bought from the dispensary.
The 26th section is next quoted,
which it is contended was not to
crete anything criminal odense, but
to prevent the courts from entertain
ing any action for the recovery of the
price of any liqnor so seized.
SO much of fhe 35th section which
is pertinent is quoted. 1t is difficult
to see what light this section throws
on the subject. It certainly creates
no criminal ofense except in the last
paragraphs. which has nothing to do
with the case, in sha it provides for
punishment for imitation of stamps
BE concluded by saying "a very
careful consideration of this case in
all its aspects leads inevitably to the
conclusion that the grounds Of appeal
must be sustained Finally he
says ..Inasmuch as this opinion
was originally prepared before the
recent decision of the supreme court
of the United States in Donald vs.
Scott. 165 q. S.. 68, was announced,
desire to avail myself of the op-
portunity now presented of adding
that it seems to me absolutely neces-
sary to adopt the conclusion which |
have reached in order to avoid con-
fict with the decision of the supreme
court of the United States, which it
must be conceded is final arbiter of
all questions involving a construction
of the Constitution of the United
States
JUSTICE GARY's VIEW.
Mr.. Justice Gary, in his opinion,
concuring with the opinion of the