In Byars v. State, 73 Ga. App. 727 (3) (38 S.E.2d 53) this court held that "whether a confession was freely and voluntarily made when issuable, should be submitted to the jury for determination."Summary of this case from Rogers v. Saye
DECIDED APRIL 22, 1946.
Violating liquor law; from Butts superior court — Judge Persons. November 17, 1945.
W. E. Watkins, Benjamin B. Garland, for plaintiff in error.
Frank B. Willingham, solicitor-general, contra.
1. The indictment charged that the accused, Henry Byars, did "make, manufacture, and distill a quantity of distilled alcoholic and intoxicating liquors, spirits and alcohols, a portion of which was alcoholic, and which was the product of distillation." He was convicted. The conviction depended upon both his full and voluntary confession and upon circumstances tending to establish the corpus delicti. "`The confession being direct evidence, the conviction did not depend exclusively upon circumstantial evidence; and therefore, in the absence of an appropriate request, it was not erroneous for the court to omit to charge the law of circumstantial evidence.' Smith v. State, 125 Ga. 296, 299 ( 54 S.E. 127). See also McElroy v. State, 125 Ga. 37, 40 ( 53 S.E. 759); Owens v. State, 120 Ga. 296, 299 ( 48 S.E. 21); Eberhart v. State, 47 Ga. 598, 609; Cooner v. State, 16 Ga. App. 540 (4) ( 85 S.E. 688). In the absence of a special request so to do, the court is not bound to charge § 1031 of the Penal Code of 1910, as to the weight to be given confessions. Malone v. State, 77 Ga. 767 (5); Sellers v. State, 99 Ga. 212 ( 25 S.E. 178); Walker v. State, 118 Ga. 34 ( 44 S.E. 850)." Sutton v. State, 17 Ga. App. 713 ( 88 S.E. 122), See also Jester v. State, 193 Ga. 202, 211 (3) ( 17 S.E.2d 736).
2. "To make a confession admissible, it must have been made voluntarily, without being induced by another, by the slightest hope of benefit or remotest fear of injury." Code, § 38-411.
3. "Whether a confession was freely and voluntarily made, when issuable, should be submitted to the jury for determination." Hawkins v. State, 6 Ga. App. 109 ( 64 S.E. 289).
4. "A conviction may be lawfully had upon a free and voluntary confession, though the same be not otherwise corroborated than by proof of the corpus delicti." Wimberly v. State, 105 Ga. 188 ( 31 S.E. 162).
5. The defendant's counsel, in his argument to the jury, stated that the solicitor "tells you that a confession alone would not convict this man." The court, overlooking the fact that the solicitor general had made an opening argument which was being quoted by the defendant's counsel, interrupted him and reminded him that the opinion of the solicitor did not decide the case, but that it would be decided by the jury's opinion and the law and the evidence. The defendant's counsel replied that he was quoting the solicitor, and the court replied that the solicitor had not made an argument. The solicitor interrupted to state to the court that he had made an argument and stated in his argument that a confession had to be corroborated by the corpus delicti or other evidence. In his closing argument, the solicitor repeated to the jury that, if the corpus delicti is established, that is sufficient corroboration of a confession, adding, "Gentlemen, I made that statement to you." It seems to us that the oversight of the court was corrected, and there was no reversible error.
6. The evidence authorized the jury to find the defendant guilty of the offense of "making liquor."
Judgment affirmed. Broyles, C. J., and Gardner, J., concur.
DECIDED APRIL 22, 1946.
STATEMENT OF FACTS BY MacINTYRE, J.
On the trial of the case officers testified as to finding distilling apparatus on the premises of the defendant. The defendant had pleaded guilty of possession of the still prior to his trial for making liquor. The sheriff testified that the defendant told him, freely and voluntarily, that "him and his boy operated the still up there about twice a week; that both of them did that about twice a week, made a small amount about twice a week." Grady Jackson, an officer, testified in part: "As to evidence found by me at that location or near there as to recent operation of the still before that time, there were three places on the branch where the still had been operated, and spent beer had been thrown out on the branch and along the banks. Those three places corresponded in size to the still I found. From what I saw there, in my opinion the still had been operated no more than five days before we were there on that occasion. There were three of those places there where fires had been built, and one place where the bank had been cut out, and the still appeared to have been operated there more than any other place. This apparatus I found there was a complete distilling apparatus with the exception of the worm which was missing." Jackson also testified: "We found a distillery somewhere about 320 yards in front of his house, a path through a field to it, some barrels of beer fermented at the still, and two empty barrels." The defendant in his statement to the jury denied that he was making liquor, and introduced a witness in his behalf. The defendant was found guilty, and his motion for a new trial was overruled.