Opinion
31425.
DECIDED JANUARY 7, 1947.
Violating liquor law; from DeKalb Superior Court — Judge Davis. August 9, 1946.
James R. Venable, Frank A. Bowers, Jackson L. Barwick, for plaintiff in error.
Roy Leathers, Solicitor-General, contra.
1. In charging upon the subject of confessions and the necessity for a confession to be corroborated before it would justify a conviction, it is not error for the trial judge to fail to charge that the corroborating testimony must be such as to connect the accused with the crime charged. This is the rule in reference to the corroboration of the testimony of an accomplice, but it is not the rule in reference to the corroboration of a confession.
2. The presence of a person at a distillery where intoxicating liquor is being made, and his flight on seeing an officer approaching, may, when not satisfactorily explained, authorize a jury to find him guilty of making such liquor. Whether an attempted explanation of such presence and conduct is reasonable and satisfactory, is a question for the jury.
DECIDED JANUARY 7, 1947.
Frank Chester was tried and convicted of distilling and manufacturing alcoholic and intoxicating liquor. His motion for new trial, as amended, was overruled on every ground. To this judgment, the defendant now excepts.
Oscar Mitchell testified in part as follows: "I had occasion to go to . . Bargeron Home Place . . where a still was in operation. . . Liquor was being made and it was running out the worm of the still. The still was actually in operation. . . I saw this defendant at or near the premises. . . I caught the defendant. I ran him about a quarter of a mile before I caught him. The other defendant got away. This man had beer slop on his shoes and coveralls. He told me that he had only worked there a couple of days before that, and he didn't know who he was working for or anything about it, all he was doing was working at the still."
Testimony of other witnesses for the State was in substance the same as that of Mr. Mitchell.
The defendant made the following statement: "Gentlemen of the jury, I went over there. I had a terrible cold and I went over there to get me some whisky. I stayed there about ten minutes and I run, I didn't want to get caught. I wasn't working."
1. In his amended motion for new trial, the defendant assigns as error the failure of the trial court to charge the jury in substance the principle of law that, in order for evidence or circumstances to be deemed as corroboration of a confession by the defendant, the same must connect the accused definitely with the perpetration of the offense which it is claimed he confessed to perpetrating. This is the rule in reference to the corroboration of testimony of an accomplice, but it is not the rule in reference to the corroboration of a confession. Cochran v. State, 113 Ga. 726 (7), 736 ( 39 S.E. 332). The trial court did not err in failing to instruct the jury on the above principle of law.
2. The defendant contends that the trial judge erred in overruling his motion for new trial on the general grounds. There is no merit in his contention. "Presence of a person at a distillery where intoxicating liquor is being made, and his flight on seeing an officer approaching, may, when not satisfactorily explained, authorize a jury to find him guilty of making such liquor. Whether an attempted explanation of such presence and conduct is reasonable and satisfactory is a question for the jury." Flint v. State, 29 Ga. App. 222 ( 114 S.E. 585); Smith v. State, 46 Ga. App. 351 ( 167 S.E. 714).
Judgment affirmed. Broyles, C. J., and Gardner, J., concur.