City of Union v. Strickland

The opinion of the Court was delivered by Mr. Justice Marion. The record discloses that the defendant was convicted in the municipal Court of Union upon an indictment, or its equivalent, which charged, under separate counts, or the equivalent thereof, the commission of at least two separate-and distinct crimes: (1) The transporting of alcoholic liquor, and (2) the sale of alcoholic liquor. If the act of transporting and the act of selling could lawfully be made to constitute two separate and distinct crimes, the power of the municipal Court to inflict a sentence, upon each count for each offense, is beyond question. See State v. Klugh, 132 S. C., 199; 128 S. E., 882. And it had, of course, the power to impose for each offense the maximum of $100 fine or 30 days’ imprisonment. The constitutional limitation is plainly a limitation upon the power to impose a sentence in excess of that maximum for a single offense or crime. That the separate acts of (1) transporting and (2) selling alcoholic liquor may be made to constitute separate and distinct crimes is too well settled to require citation of authority. 16 C. J., 264 and 278, §§ 444 and 470. One act does not embrace, and is not identical with, the other. A person may transport a bottle, keg,' or case of liquor, without selling it; he may sell a bottle, keg, or case of liquor without having transported it. He may, as separate and distinct acts, both transport and sell the same bottle of liquor. That but one bottle of whisky was involved in this case is immaterial. The conclusion of the Circuit Judge as a matter of -law that the municipal Court did not have the power to impose a sentence, in excess of a fine of $100 or 30 days’ imprisonment, when the defendant *143 was convicted of at least two separate and distinct offenses, is, in my opinion, clearly erroneous. The record, however, contains the following statement: “The defendant was found guilty by the jury of selling whisky, transporting whisky, and having in possession whisky. The defendant was sentenced to pay a- fine of $100 or serve 30 days on each charge.” The ordinances under which defendant was convicted are set out in the case and incorporated in the opinion of Mr. Chief Justice Gary. None of those ordinances denounces as a crime the act of “having in possession.” Upon that count, therefore, we think the defendant was improperly convicted, and it follows that the sentence imposed upon that count was invalid and void. It further appearing that “the defendant was sentenced to pay a fine of $100 or serve 30 days on each charge,” under the well-settled rule that “when several sentences are imposed for separate and distinct offenses * * * they run concurrently, unless the intention that one should begin at the expiration of the other is expressed” (State v. McKellar, 85 S. C., 236; State v. Klugh, supra), we are of the opinion that the two valid sentences imposed on each of the charges for selling and transporting, in the absence of any expression to the contrary, must be construed to run concurrently. The defendant, therefore, has the option of paying the two fines of $100 each, aggregating $200, or of serving 30 days’ imprisonment; that is, of serving the two prison terms of 30 days each concurrently. The judgment of the Circuit Court is reversed, and the case remanded to the municipal Court for the purpose of enforcing each of the two valid sentences imposed upon the counts for “selling” and “transporting” in accordance with the views herein expressed. Reversed. Messrs. Justices Watts and Cothran concur.