Opinion
34871.
DECIDED OCTOBER 20, 1953.
Violating liquor law. Before Judge Kimbrough. Metter City Court. July 18, 1953.
Dan L. Lanier, for plaintiff in error.
L. C. Anderson, Solicitor, contra.
1. The general grounds and special ground 1, argued together by counsel for the defendant, are without merit for the reasons given in the body of the opinion.
2. The contention that, under the facts of the instant case, the court erred in imposing two sentences to run cumulatively is without merit for the reasons given in the body of the opinion.
DECIDED OCTOBER 20, 1953.
The defendant was convicted on an accusation containing two counts, accusing him jointly with B. J. Griffin. We are not here concerned with Griffin. Count 1 charged the defendant with possessing and controlling non-tax-paid intoxicating liquors known as "moonshine liquors," under Code § 58-1056 (Ga. L. 1937-38, Ex. Sess., pp. 103, 117).
Count 2 charged him with transporting non-tax-paid intoxicating liquors, "moonshine liquors," under Code § 58-1020 (Ga. L. 1937-38, Ex. Sess., pp. 103, 108). The defendant filed a motion for new trial on the statutory grounds and thereafter amended by adding two special grounds. The court denied the motion. On this judgment the defendant assigns error here.
We will set out the evidence somewhat in detail, but briefly and substantially. F. C. Fulford, an enforcement agent, testified: that he saw the defendant and B. J. Griffin on Sunday, April 5, 1953, on a main road, and they turned into a road where Griffin lived; that the witness followed the defendant and Griffin onto the off road, the road leading into Jack's Creek; that in a short time the defendant and Griffin were seen meeting the witness; that, when the witness saw the truck in which the accused was riding, the witness and his companion stopped to see what was going to happen. (We will use the word "accused" hereinafter to refer to the defendant and Griffin.) The witness further testified that the truck in which the accused was riding stopped about 75 yards from where the witness and his companion had stopped; that the accused got out of the truck, and they went to carrying the liquor out of the truck and putting it down beside the road about 10 steps from the truck; that the officers started moving on towards the truck, and a noise came from towards the house of Griffin; "a horn blowing and a lady went to hollering, and when she went to hollering, we knew it was a signal because they give so many in there, we knew what they were doing." Then it was the officers drove quickly up to the truck. When the signal took place, the accused looked up and saw the officers. Griffin had the last of the liquor in a container. The witness further testified that, when Griffin discovered the officers, he ran back to the truck and broke the container in the body of the truck; there was a carton which apparently had contained liquor containers on the floor in front of the front seat of the car. The witness testified that the accused, Griffin, then got under the steering wheel of the truck, attempted to unhang the gears, "so he said"; that both of the accused were moving the liquor from the truck when the officers saw it being moved; that the officers found an empty case in the truck from which the accused had taken the liquor; that the carton had gotten wet; that the bottom of the carton wouldn't hold up the liquor; that in the bottom of the carton were imprints of bottoms of jars, showing where the jars had been sitting in the carton; that the witness went to the place where he had seen both the accused carrying the jars and found three gallons of liquor lying there; that there was no trouble in the witness going to the liquor because he had seen the liquor being taken from the truck by the accused; that the witness found six one-half gallon jars of "moonshine" non-tax-paid liquor; that there was no evidence of any stamps attached to the containers; that there were tracks leading from the truck to where the liquor was placed beside the road; that the witness saw the accused make those tracks.
The witness testified that his companion, Sykes, reached down with his hands and pulled up the lever which gets hung sometimes; that the accused were arrested and carried to Metter, Georgia; that the officers carried the truck and the liquor which was found to Metter; that each of the accused said he didn't know anything about any liquor; that the defendant, Bird, tried to lay it onto Griffin, and Griffin tried to lay it onto Bird, but they never could get together; that the witness saw the truck moving up to where it stopped; that the accused were in the truck and no one else.
On cross-examination, the same witness testified: that the officers stopped their automobile at the end of the lane and saw the accused coming across the oak ridge; that the officers intended to stop the accused when they met, but that the accused stopped the truck some little distance away from the officers around a "sort of curve"; that the accused didn't see the officers but could have seen them, but for some reason they didn't act like they saw the officers because the witness did not believe the accused would have unloaded the liquor as calmly as they did if they had seen the officers; that, if the accused had seen the officers, they probably would have broken the containers, as they broke the last container; that, at the time the accused were moving the liquor from the truck, the officers could not determine that the containers contained liquor, but that, when it was moved from the truck and the officers went down to the truck, they found the liquor beside the road where the accused had taken it from the truck and placed it, and then it was that they discovered that it was liquor; that, while the witness did find tracks from the truck to where the liquor was placed, approximately 10 steps away, yet if the witness had not seen the tracks at all, he would have known who put the liquor there because he saw the accused put it there.
The State next introduced Russell Sykes, who testified that he was with the witness, Fulford, at the time the accused were apprehended with the liquor; that, when, the witness first saw the accused, they were going towards the road towards Jack's Creek by B. J. Griffin's house; that the witness was watching through the oaks and saw the accused take the liquor out of the truck and put it where the officers later found it; that the accused took the containers out of the truck and laid them down flat like stove wood; that there were six half-gallon containers; that, as the officers approached the truck, Griffin had a container in his hand and broke it in the back part of the truck; that the witness examined the liquid that came out of the container that was broken in the truck, and found that it was "moonshine"; that the witness also heard the signal.
Sheriff F. D. Wallace testified for the State substantially: that he drove up to the jail about the time that Fulford and Sykes brought the defendant and Griffin and the truck to the jail; that witness examined the truck and there was glass back there, and it was wet back there; that the sheriff smelled of the liquid and asked Griffin what it smelled like and Griffin laughed; that the sheriff examined the six containers of liquor which were brought to the jail by Fulford and Sykes and it was "moonshine" liquor.
The defendant made a statement, in which he denied any knowledge of the liquor. He admitted that he was driving the truck in question. He stated that the truck belonged to Cleo Copeland, and that Copeland had requested the defendant to drive it back there to the creek and pick up his fish hooks; that the defendant did this, and as he was returning his truck got caught in low gear and he did not want to burn up the truck, so he stopped to fix it; that he did not know anything about the liquor beside the road, nor did he know anything about the smell of the liquor in the back of the truck. The defendant denied taking the liquor from the truck and putting it beside the road, and stated that he never got out of the truck; that he got the fishing tackle and was returning the truck and the fishing tackle to Copeland; that he had his fishing tackle under the seat of the truck; that he never touched a container of liquor; that he didn't carry any and did not see Griffin carry any.
1. Counsel for the defendant argues his general grounds and special ground 1 together. Special ground 1 assigns error on the ground that the evidence was wholly circumstantial, and that the court committed reversible error by not charging the principle of law of circumstantial evidence, without a written request to do so. Counsel cites, in support of his contentions as to the general ground, Roper v. State, 67 Ga. App. 272 ( 19 S.E.2d 746) and Serritt v. State, 44 Ga. App. 269 ( 161 S.E. 279). A reading of the facts in those cases and the facts in the instant case will readily show that the cases are widely differentiated by their respective facts. We will not comment further, since the facts in the instant case as set out hereinabove somewhat in detail, speak for themselves, contrary to the contentions of the defendant. The verdict did not depend wholly upon circumstantial evidence. Further as to the general grounds, the sworn evidence which we have given substantially hereinabove speaks more convincingly than we can to the effect that the evidence abundantly supports the verdict. There is no merit in the contentions regarding the general grounds nor does special ground 1 show reversible error.
2. Special ground 2 assigns error on the ground that, under the accusation which contained two counts, each count charged a violation of the liquor laws of this State in a different way, and that the court, under the verdict rendered, to wit, "We, the jury, find the defendant guilty," should have imposed but one sentence, or that the two sentences imposed should run concurrently. In support of this contention, counsel calls to our attention an excerpt from the opinion in Tooke v. State, 4 Ga. App. 495, 503 ( 61 S.E. 917) and an excerpt from the dissenting opinion in Simmons v. State, 162 Ga. 316, 321 ( 134 S.E. 54). Of course, a dissenting opinion does not establish the conclusion of the law of this State. The majority opinion in the Simmons case does not sustain the contentions of the counsel for the defendant. The excerpt from the Tooke case, quoted by counsel for the defendant, seems to be misconstrued as to its effect. That excerpt reads: "A paramount reason why the distinction should exist is this: where the indictment relates to a sole transaction, and the pleader, not being certain as to the exact manner in which he shall be able to prove that the crime was committed, yet knowing that if he describes the offense with alternative or ambiguous allegations he renders the indictment subject to demurrer for duplicity, resorts to the fiction of charging that the defendant has committed a number of crimes, all in fact the same, yet varying in detail — that is, charges the same offense in different counts, as if it were a number of transactions, — the court on the trial of the case, and the appellate tribunal on review of it, largely disregard the fiction and look to the substance, and not the form of the charge. Hence if the defendant is convicted generally — that is to say on all of the counts — the court imposes but a single sentence; or (under the former practice in England and under the present practice in some of the States) meets fiction with fiction, and imposes several sentences, but makes them run concurrently."
In the Tooke case, at page 504, this court said: "On the other hand, where the same indictment really charges a number of distinct and separate transactions, it becomes the duty of the trial court to conduct the case, and of the appellate court to review it, just as if it were a consolidation of separate indictments; and where the defendant was convicted generally, — that is to say, on all of the counts — or specifically on more than one of them, — it was the course at common law to sentence the defendant on each count; and these sentences might be cumulative. For some reason, it has not been the practice in this State to impose cumulative sentences, upon the different counts of an indictment charging distinct offenses; but we know of no reason why it may not be done; for as to these things we are supposed to follow the common law. Indeed, all through the course of our reports are to be found intimations that the power to impose more than one sentence in such a case exists." This seems to be the gravamen of that case as applied to the case at bar. We invite a careful reading of the entire decision of the Tooke case. This court held in Southern Express Co. v. State, 23 Ga. App. 376, 381 ( 98 S.E. 272): "The act of transporting alcoholic liquors as set out in the first count of the indictment is a separate and distinct offense from that of having, controlling and possessing alcoholic liquors as charged in the second count thereof." In Lee v. State, 66 Ga. App. 613 ( 18 S.E.2d 778) this court went fully into the question now before us. One further interested in the question, in order to determine the law prevailing in Georgia thereon, may read the Lee decision. There is no merit in this contention.
The court did not err in denying the motion for new trial for any of the reasons assigned.
Judgment affirmed. Townsend and Carlisle, JJ., concur.