The opinion of the court was delivered by: Legge, Justice.
Appellants, who are husband and wife, were tried and convicted at the November, 1955, term of the Court of General Sessions for Georgetown County, upon an indictment charging possession of alcoholic liquor in their place of business, which was not a licensed liquor store. Code 1952, § 4-95. Isiah was sentenced to serve two years on the public works of Georgetown County or a like period in the State Penitentiary; Annie, to one year in the Georgetown County jail.
By eleven exceptions, error is charged in the following particulars:
1. Refusal to grant a continuance (Exception 1);
2. Admission of certain testimony of one Elliott, a witness for the State (Exception 2);
3. Refusal to direct a verdict of not guilty as to Annie Jiles because of lack of evidence (Exception 3);
4. Refusal to order a mistrial because of improper argument by the solicitor (Exception 4);
5. Charging that persons aiding and abetting are liable as principals (Exception 5);
6. Denial of motion for judgment n. o. v. because of lack of evidence (Exception 6 and 7);
7. Denial of motion for arrest of judgment (Exception 8);
8. Infliction, by the sentence, of cruel and unusual and therefore unconstitutional punishment (Exceptions 9 and 10); and
9. Failure to conduct the trial "according to the laws of the State of South Carolina and the law of the United States of America, made and existing for the protection of the liberty of the citizens of said United States of America and said State of South Carolina, — the defendants, and each of them, being such citizens" (Exception 11).
Discussion of these exceptions will be facilitated by a brief recital of the facts of the case, which, except as hereinafter indicated, appear undisputed.
Appellants operated in Georgetown County, about a mile distant from their residence, a combination grocery store, beer parlor and "piccolo". In the rear part of the building were a kitchen and a bedroom. About midday on July 4, 1955, Deputy Sheriff Robert Elliott, checking the place, purchased from Isiah a soft drink and, while drinking it, walked behind the store counter, where he found a "fifth" of whiskey. Saying to Isiah, "You know it is a violation to have this liquor in your joint", he picked up the bottle and walked through the door into the bedroom. He testified that in the bedroom he observed a large paper bag "sitting" on the floor; that he walked over to it, placed the bottle on the floor near it, opened the bag, and saw that in it were some twelve or fifteen half-pints of whiskey; that at that moment Isiah jumped on him from behind and caught him around the neck; that in the course of his struggle to get Isiah off his back, Annie joined in the fracas, kicking and biting him; that his pistol and holster having fallen to the floor during the scuffle, Annie grabbed them and ran out of the back door; and that finally, having freed himself, he went out of the front door to his car, where he called for help and waited until Deputy Sheriff Johnson arrived. Elliott and Johnson then went back into the store, but found neither liquor nor Isiah. Deputy Johnson arrested Annie and took her to jail. Elliott's pistol and holster were later turned over to the Sheriff by appellants' counsel. As to what took place in the back room, there is conflict between Elliott's testimony and that of appellants. Isiah testified that he asked Elliott, when he went into the bedroom, if he had a search warrant, to which Elliott replied that he didn't need one; and that then Elliott pulled his gun and Isiah, scuffling with him, took it from him and threw it on the floor, ...