Opinion
34239.
DECIDED SEPTEMBER 19, 1952.
Violating liquor law; from Cobb Superior Court — Judge Brooke. June 27, 1952.
Howell C. Ravan, Ben F. Smith, for plaintiff in error.
Jas. T. Manning, Solicitor-General, contra.
1. The evidence amply supports the verdict.
2. The two special grounds are without merit for the reasons specified in the body of the opinion.
DECIDED SEPTEMBER 19, 1952.
The defendant was convicted in the Superior Court of Cobb County on an indictment containing three counts. The first count charged that he did "have, control and possess" whisky. The second count charged him with transporting whisky. The third court charged him with selling whisky. He filed a motion on the general grounds and thereafter added two special grounds. This motion was overruled and the defendant assigns error on that judgment here.
The evidence briefly, but substantially shows: T. Green Duke, witness for the State, testified that he lived in Cordele, Georgia, and worked with the State Revenue Department; that he has been in this type of work since 1927; that he went to the defendant's home on December 1; that the defendant was not at home, but he saw the defendant's wife; that on December 4, he saw the defendant at the defendant's home about 7 in the morning and informed the defendant that he wanted some whisky; that the defendant inquired, "How much?" That the witness responded, "A couple of gallons." The witness further testified that the defendant then directed him to go down the Powder Springs Road and wait and he would bring the whisky down there; that the defendant informed the witness that it would be about 9 before he could deliver it; that about 9 the defendant drove to the meeting place in a taxi with another negro; that the witness went over to the taxi and the defendant was sitting on the righthand side in the taxi; that the taxi driver was in the taxi; that the defendant had two one-gallon cans of whisky in a sack and handed the sack to the witness; that the witness paid the defendant $16 for the whisky and $2 for taxi hire; that Mr. Wickerson of the Revenue Department had given the witness the money in Atlanta; that the whisky was delivered in Cobb County; that the defendant stated to the witness that the defendant knew the witness had been there before and had spoken to the defendant's wife; that the defendant informed the witness that he did not keep any whisky in the house.
The records of four previous convictions of the defendant were introduced without objection. The defendant made the statement contending that he had never sold the State agent, Duke, any whisky. He admitted that the agent went to his house on December 1, but stated that the agent did not go to the defendant's house on December 4. He stated that the agent tried to buy some whisky from him on December 1, but that the defendant would not sell him any; that he did not see the agent on December 4 at the defendant's house. He said he informed the agent that he had sold whisky and had pleaded guilty to such selling, and that he was told to stop selling whisky, and that he stopped.
Duke, on recall, testified that he had heard the statement of the defendant, and that what the defendant said with reference to not selling the whisky to the witness was untrue.
Deputy Sheriff Bryant testified for the State that the defendant talked to him several times on the street with reference to the charge in question and talked to him one time in the sheriff's office; that the defendant wanted to know, if he were to come in and plead guilty to the charge in question, would the judge send him to the chaingang; that the defendant stated that he did not want to go to the chaingang; that the defendant had paid fines on several occasions. On cross-examination, this same witness testified: "Every time we catch him he has been good and he has come in and pled guilty. The judge told him the other time not to come back any more." The witness testified that he had never had any trouble with the defendant and had caught him several times; that he had "laid out" in the woods lots of times, trying to catch the defendant; that he had no malice against the defendant or against anyone else.
1. The evidence overwhelmingly supports the verdict.
2. Special ground 1 assigns error because the court charged the principle of law with reference to aiding and abetting in the commission of a crime. Perhaps this charge might have been inapt, since all who participate in the commission of a misdemeanor are principals and it is not necessary to charge the principles of aiding and abetting. Counsel for the defendant contend that to charge so is reversible error. The taxicab driver and the defendant were guilty as principals in this misdemeanor case under the evidence. This assignment shows no reversible error.
3. Special ground 2 assigns error on the following charge of the court: "Now our law provides that no person shall possess any quantity of alcoholic liquors upon which the tax has not been paid. It is also provided that no person shall transport or convey or assist in transporting or conveying along with another, any quantity of non-tax-paid liquor. It also provides that no person shall sell non-tax-paid liquor. In other words, we have three charges in this indictment; one of transporting, one of selling and one of possessing liquor." Error is assigned on this excerpt from the charge: (a) Because there is no evidence to show that the whisky was intoxicating and, (b) that it was not authorized by the evidence. The State proved that it was whisky possessed, transported, and sold. "Whisky" is intoxicating.
The court did not err in overruling the motion for a new trial for any of the reasons assigned.
Judgment affirmed. Townsend and Carlisle, JJ., concur.