Opinion
37246.
DECIDED JULY 16, 1958. REHEARING DENIED JULY 31, 1958.
Liquor violation; petition for certiorari. Fulton Superior Court. Before Judge Pharr. April 25, 1958.
Wesley R. Asinof, for plaintiff in error.
Paul Webb, Solicitor-General, John I. Kelley, Solicitor, Robert O'Neil, Hinson McAuliffe, Eugene L. Tiller, contra.
The verdict was required by the evidence, and in such cases, even if there be error in the charge, it will not necessitate a new trial.
DECIDED JULY 16, 1958 — REHEARING DENIED JULY 31, 1958.
The defendant was accused and tried for the illegal possession and sale of whisky in counts substantially as follows: Count 1 accused the defendant of having, controlling and possessing distilled spirits and alcohol which did not bear State revenue stamps, on May 3, 1956. Count 2 accused him of the offense of misdemeanor in that he did engage in and sell distilled spirits and alcohol without first obtaining a license from the office of the State Revenue Commissioner, this selling having been done on May 3, 1956. Count 3 is the same as count 1 with the exception that the offense is alleged to have been committed on May 11, 1956. Count 4 is the same as count 2 with the exception of the date, the date alleged in count 4 being May 11, 1956. Count 5 is the same as counts 1 and 3 except the date alleged is February 1, 1957. Count 6 is the same as counts 2 and 4 except the date alleged is February 1, 1957.
All the counts make the dates of the offenses an essential ingredient of each count.
The defendant filed his application for the writ of certiorari based on the statutory grounds and four special grounds. The trial judge answered the petition for the writ. On the hearing the judge of the superior court overruled the certiorari. It is to this judgment that the defendant filed exceptions here.
The evidence developed on the trial shows substantially as follows: W. H. Henderson, a witness for the State testified as to the plan and method by which he and other officers developed the State's case. He testified that he had been attempting to catch the defendant with liquor and finally succeeded in buying liquor from him. The raid on the defendant's premises resulted in the finding of 200 gallons of non-tax-paid liquor. The witness testified that he had been connected with a chartered organization known as the Anti-moonshine League and that he came to Georgia to work for the State Revenue Department in order to gather evidence on the defendant and other illegal liquor operators.
Harold L. Wright testified that he was an investigator for the Alcohol Board at Raleigh, North Carolina, and that in December 1956 he came to Georgia to make investigations and came in contact with the defendant and purchased from him twelve gallons of non-tax-paid whisky.
The defendant in his statement admitted selling the liquor to one of the witnesses and stated that he did it because the revenue agent had told him he would help make arrangements for the defendant to get a beer license. The defendant said, "I took the money [for the liquor] . . . but I didn't make any profit off of it at all except that the boy gave me a pint of real whisky for my services."
1. The defendant relies for a reversal upon the alleged incomplete charge to the jury on the subject of entrapment, and upon the general grounds.
(a) Insofar as the general grounds are concerned the evidence overwhelmingly supports the verdict as to each count.
(b) We will now discuss whether or not the record reveals an entrapment of the defendant. This court said in Sutton v. State, 59 Ga. App. 198 (2, 3) ( 200 S.E. 225): "It is no `entrapment' to commit a crime where the officer merely furnishes an opportunity to a criminal who is ready to commit an offense. `Entrapment' exists where the idea and intention of the commission of a crime originates with an officer of the State, and he, by undue persuasion, incitement, and deceitful means, induces the defendant to commit an act (in violation of the literal terms of the prohibition law), which the defendant would not have committed except for the conduct of such officer." In this connection see also U.S. v. Wray, 8 Fed. 2d 429. In Sutton v. State, supra, this court cited Dalton v. State, 113 Ga. 1037 ( 39 S.E. 468), and Edmondson v. State, 18 Ga. App. 233 ( 89 S.E. 189). In the body of the Sutton case the court said: "Entrapment is the seduction or improper inducement to commit a crime and not the testing by trap, trickiness, or deceit of one suspected. . . The discovery of crime and the procurement of evidence by deception are not prohibited. A trap may be set. . . The testimony merely that a witness purchased whisky with money furnished by an officer, and that the witness told the defendant that he `had just gotten over a drunk and was feeling mighty bad and had begged him (the defendant) to sell me (witness) whisky' is not sufficient to raise the defense of entrapment. . . He committed a criminal act, and the evidence does not show that he did not exercise his own volition by so doing. . . The defendant was a suspected person and could be tested by being offered an opportunity to transgress the law in such manner as is usually done. He was not put under an extraordinary temptation or inducement. Even if the statement of the witness to the defendant that he `had just gotten over a drunk and was feeling mighty bad' be considered as a temptation to sell the liquor, this would be but a repetition of the first plea ever interposed in Paradise: `"The serpent beguiled me and I did eat." That defense was overruled by the great Lawgiver, and whatever estimate we may form, or whatever judgment pass upon the character or conduct of the tempter, this plea has never since availed to shield crime or give indemnity to the culprit, and it is safe to say that under any code of civilized, not to say Christian, ethics, it never will.' . . . If an officer of the law has reason to believe that the law is being violated, he may proceed to ascertain whether those who are thought to be doing so are actually committing a criminal offense. If an officer acts in good faith in the honest belief that the defendant is engaged in an unlawful business, of which the offense charged in the indictment is a part, and the purpose of the officer is not to induce an innocent man to commit a crime but to secure evidence upon which a guilty man can be brought to justice, the defense of entrapment is without merit. In other words, if, at the time in question and at the time of the solicitation for the sale of whisky, the defendant was engaged in the business of selling and possessing intoxicating liquor, it is no defense for him that he was merely induced by solicitation and misrepresentation to sell or possess such prohibited liquor." In Miller v. State, 69 Ga. App. 847 ( 26 S.E.2d 851) this court cited approvingly Hagar v. State, 71 Ga. 164. In the Hagar case (headnote 3a) this court said: "The verdict was required by the evidence, and in such cases, even if there be error in the charge, it will not necessitate a new trial." See also Green v. State, 153 Ga. 215 (4) ( 111 S.E. 916), Cason v. State, 16 Ga. App. 820 (4) ( 86 S.E. 644), and Wood v. State, 32 Ga. App. 58 ( 122 S.E. 722).
There is no reversible error in any of the rulings of the court.
Judgment affirmed. Townsend and Carlisle, JJ., concur.