Opinion
33457.
DECIDED APRIL 19, 1951. REHEARING DENIED JUNE 5, 1951.
Violating liquor law; from Clarke Superior Court — Judge West. December 16, 1950. (Application to Supreme Court for certiorari.)
James W. Arnold, for plaintiff in error.
D. M. Pollock, Solicitor-General, contra.
( a) Where a witness is sought to be impeached under Code § 38-1802 by disproving the facts testified to by him in such way that there results only a conflict between his testimony and the testimony of other witnesses, it is the province of the jury to determine which of the witnesses has spoken the truth even if in order to do so it is necessary to impute perjury to one or the other.
( b) Where a witness is sought to be impeached under Code § 38-1803 by reason of having previously made contradictory statements out of court as to matters relevant to his testimony and to the case, the credit to be given his testimony is for the jury to determine.
( c) The verdict is authorized by the evidence and having the approval of the trial court will not be disturbed by this court.
DECIDED APRIL 19, 1951. REHEARING DENIED JUNE 5, 1951.
Linton Champion was indicted, tried and convicted in the Superior Court of Clarke County for the offense of selling distilled spirits on which the State revenue tax had not been paid. Upon the trial of the case police officers of the City of Athens testified: that they noticed a taxicab driver, W. W. Chandler, crossing a street near the residence of the defendant; that his pocket bulged in such manner that they stopped to investigate him; that he had a half pint of non-tax-paid whisky on his person; that he stated to the officers that he purchased it in the home of the defendant; that the officers went into the defendant's home where they found the defendant, his wife and another man; that when they asked the wife of the defendant about selling the whisky to Chandler she denied knowing anything about it; that thereupon they returned to the taxicab and brought Chandler into the house; that Chandler then identified the wife of the defendant as the person from whom he bought the whisky; that they then directed the defendant's wife to dress appropriately for going to jail and that thereupon the defendant said, "I sold him the liquor; my wife did not have anything to do with it." He then identified the defendant as the one who sold him the whisky. Thereupon the case was made against the defendant instead of his wife. The testimony of officer Lampkin was substantially the same as officer Hansford except that on cross examination this witness was obviously evasive when questioned about Chandler's first identification of the defendant's wife. After several evasive answers the trial court instructed the witness to answer the question or, if he did not remember, to say so. His answers thereafter were to the effect that he did not remember.
W. W. Chandler, the taxi driver, testified on behalf of the State that he had gone to the house of the defendant to buy whisky; that the defendant and his wife were present; that he bought the whisky from the defendant; that the defendant's wife had originally started to get the whisky but there was no bottle, and the defendant got a bottle, gave it to the witness, and received $1.25 in payment; that within a few minutes of leaving the house he was stopped by the two police officers who found the bottle on him and he admitted the purchase and went back to the house with the officers and told them he had bought the liquor from the defendant. He denied that he ever identified the wife of the defendant as the person from whom he bought the liquor.
The other person present in the home of the defendant testified as a witness for the defense that he was in the room when Chandler first entered and that neither the defendant nor his wife were there at that time; that Chandler had gone into a back room where another woman was ironing and had come out again shortly; that about ten minutes later the defendant and his wife had arrived and that the police officers arrived almost immediately thereafter; that Chandler had first accused the defendant's wife of selling the liquor but had later changed his story and accused the defendant. The defendant made a statement to the same effect in which he contended that he had sold no whisky but that the officers were about to arrest his wife and he merely said, "I am the man of the house; if you are going to take some one, take me."
The defendant made a motion for a new trial on the general grounds only, upon the overruling of which error is assigned.
Counsel for the defendant contends that the evidence is insufficient to support the verdict of guilty without the testimony of the witness Chandler and that this witness was successfully impeached. Code § 38-1802 provides as follows: "A witness may be impeached by disproving the facts testified to by him." Chandler's testimony was contradicted by one of the police officers and the witness for the defendant who was present on one material point, they having testified that Chandler first identified the wife of the defendant as the person from whom he bought the whisky, and Chandler having denied this part of their testimony. The truth of the testimony of the police officer and the defendant's witness may also be inferred from the equivocal character of the testimony of officer Lampkin. A part of Code § 38-1803 provides as follows: "A witness may be impeached by contradictory statements previously made by him as to matters relevant to his testimony and to the case." It therefore follows that the jury was authorized to find that this witness was successfully impeached. He was successfully contradicted. However, Code § 38-1806 provides as follows: "When a witness shall be successfully contradicted as to a material matter, his credit as to other matters shall be for the jury, but if a witness shall swear wilfully and knowingly falsely, his testimony shall be disregarded entirely, unless corroborated by circumstances or other unimpeached evidence. The credit to be given his testimony where impeached for general bad character or for contradictory statements out of court shall be for the jury to determine." Where a witness swears wilfully and knowingly falsely his testimony shall be disregarded entirely. The fact that a witness has sworn wilfully and knowingly falsely is unequivocally determined where he swears to two conflicting statements in the same case. Where this is done the testimony of such witness must be disregarded entirely by the jury unless one or the other of such statements is corroborated. See Crowe v. State, 83 Ga. App. 325, 327 ( 63 S.E.2d 682).
On the other hand, where a witness is sought to be impeached by disproving facts testified to by other witnesses which results only in a conflict between their testimony and his, it is the province of the jury to determine which of the witnesses has spoken the truth, even if in order to do so it is necessary to impute perjury to one or the other. See Hunter v. State, 136 Ga. 103 (1) ( 70 S.E. 643). The witness Chandler did not himself swear to two conflicting states of facts. He testified that he bought the whisky from the defendant. He was sought to be impeached by showing that he made a prior contradictory statement to the effect that he bought the whisky from the wife of the defendant, under Code § 38-1803, supra. However, as provided in Code § 38-1806, supra, the credit to be given his testimony notwithstanding his prior contradictory statement is for the jury to determine. See Haywood v. State, 114 Ga. 111 (1) ( 39 S.E. 948); Waycaster v. State, 136 Ga. 95 (3) ( 70 S.E. 883); Smith v. State, 7 Ga. App. 710 (1) ( 67 S.E. 1048); Ware v. State, 18 Ga. App. 107 (3) ( 89 S.E. 155); Henderson v. Cook, 27 Ga. App. 512 (1) ( 108 S.E. 904).
The evidence authorized the verdict, and the judgment of the trial court overruling the motion for a new trial is without error.
Judgment affirmed. MacIntyre, P.J., and Gardner, J., concur.