Opinion
30543.
DECIDED JUNE 27, 1944.
Violating liquor law; from Floyd superior court — Judge Porter. March 18, 1944.
M. G. Hicks, J. F. Kelly, for plaintiff in error.
Henderson Lanham, solicitor-general, contra.
1. All engaged in the commission of a misdemeanor are principals, and if the defendant worked for another at his place of business, and this was where his duties were to be performed, he might be guilty of selling whisky in a dry county, though he was not the owner of the whisky, but merely the employee and agent of the owner.
2. Proof that the defendant directly or personally enacted the criminal transaction (selling whisky in a dry county), or that he aided or abetted the criminal transaction of his employer at his employer's place of business, would authorize the defendant's conviction of the offense of selling whisky.
3. A witness, though not an expert, may testify as to his judgment whether a liquid he observes is whisky. Holcombe v. State, 5 Ga. App. 47 (8) ( 62 S.E. 647).
DECIDED JUNE 27, 1944.
The defendant was charged with the offense of selling whisky in "the dry county of Floyd." Under our law, a person in a dry county is prohibited from having more than one quart of tax-paid liquor in such county, and can not sell any amount of whisky whatsoever in a dry county. There was a place of business in Floyd County known as Forrest Davis's place. Davis had a Federal license to sell wine, beer, and whisky. This, however, did not permit him, under the State law, to sell whisky. Harry Davis, a deputy sheriff of Floyd County testified as follows: "I know the defendant, and on or about the 12th day of December, 1942, I did see him sell some liquor over at Forrest Davis's place on North Second Avenue. He sold the pint of whisky. I saw him carry it out and hand it to some parties in a car. I then searched him and found [another] pint of whisky on him. I know that they paid him for the whisky — they handed him a bill and some silver." On cross-examination he testified: "I saw him hand a pint of liquor to a fellow who was sitting by the driver on the front seat of the automobile, and this party handed him a bill and some silver. I know it was liquor; of course I did not get the bottle that he handed in there to the man, but I followed him right on in the place after that, and he had a pint of liquor on him just like the one he handed in the car. He handed the man in the car a pint bottle filled with a brown substance. I do not know whether it was the bottle that was brown or the substance that was in it that was brown. It was a pint of liquor. I did not touch the bottle; it had a label on the bottle but I do not know what was on the label. I do not know what was in the bottle; I took it to be liquor. That was the business they were in over there. So far as I know of my own personal knowledge, it could have as well been a pint of wine as a pint of liquor; all I know it is [was] a brown substance in a bottle with a label on it. He handed him a bottle with a label on it, and I don't know what it had in it, only my own opinion. He handed him a bill and some silver. . . I don't know the amount of it. I know it was silver. I do not know whether it was for wine or liquor. He handed it in there, and the man passed the money out. I followed him right on in the place, and took a pint of liquor out of his belt. That was not in his belt that he handed in to the other folks." On re-direct examination he testified: "In size and color it looked like the same kind of bottle he had given the other people but I could not tell. It looked like whisky. I am familiar with whisky bottles, liquor bottles, and wine bottles. Wine bottles are smaller than whisky bottles. I could not swear to the size, except that it was a pint bottle. I did not see any wine on the shelves in Forrest Davis's place." On recross examination he testified: "I would not be positive on this particular night, but I think I took an inventory of his place that night, and I didn't see any wine." The defendant made the following statement: "Well, I went over to the service station to talk with Mr. Stancil — I always go down there and talk with him at times — and the place was closed, and Howard drove up after I came in the service station, and I asked him if he was going to the whisky store, and he said, `Yes,' and I told him I'd like to go with him and get me a pint of whisky, and he said, `All right, get in;' so I did, and went with him, and I got a pint and we came back and he opened up the place. I don't know if he had been there during the day, but the place was closed when I got there, and this car drove up and I did take them a pint of wine out there to the car. He had a pint of wine in there, and I took it out to the car, that is all there is to it."
What whisky is is a matter of common knowledge. When the witness testified that "what I saw the accused sell was whisky," we think that he was testifying to a fact discerned by him in the act of observation, and not to a conclusion, which is a mere matter of opinion. While the witness used the word "opinion" in his cross-examination, his answer, even though it might be said to have been opinionative in form, yet, we think, from the context, that he was merely qualifying his statement of the fact that, in his judgment, what he observed was whisky. He was not disproving his statement that what he observed the defendant sell was whisky, but was merely qualifying his statement of fact by the qualifying statement that in his opinion or judgment it was whisky. It has been said that "an answer of a witness is not to be struck out because he qualified his statement of fact by such qualifying statements as `I would judge,' [and] `I think.'" Abott's Trial Brief (Mode of Proving Facts), (2d ed.) 183; Holcombe v. State, 5 Ga. App. 47, 55, 56 ( 62 S.E. 647).
The testimony being to the effect that the defendant knew whisky when he saw it; that he was familiar with whisky bottles, liquor bottles, and beer bottles; and that he saw the defendant sell a bottle which looked like a whisky bottle, and which contained a liquid that looked like whisky, and which was just like a bottle of whisky that he found on the defendant immediately after the sale, together with his testimony that there was no wine on the shelves of the store of Forrest Davis from which the defendant immediately delivered the whisky (and to which he thereupon returned and was immediately searched by the officer, who found on his person a bottle of whisky similar in appearance to the one alleged to have been sold by him), and that there was a Federal license posted in this store authorizing the sale of whisky, were sufficient to sustain the conviction of the offense, as charged, of selling whisky in a "dry county." Evans v. State, 68 Ga. App. 118 ( 22 S.E.2d 323); Carter v. State, 69 Ga. App. 570, 577 ( 26 S.E.2d 374).
Judgment affirmed. Broyles, C. J., and Gardner, J., concur.