Opinion
31921.
DECIDED MARCH 5, 1948.
Condemnation of automobile; from Floyd Superior Court — Judge Porter. December 12, 1947.
E. J. Clower, Solicitor-General, for plaintiff.
Maddox Maddox, for defendant.
The evidence demanding a verdict for the State, it was error to deny its motion for new trial.
DECIDED MARCH 5, 1948.
The Solicitor-General of the Superior Court of Floyd County brought condemnation proceedings against a 1935 Dodge four-door sedan automobile, alleged to be the property of and in the possession of E. A. McGuire, alias Mickey McGuire, and used by McGuire for transporting intoxicants in the City of Rome in Floyd County in violation of the law. The defendant filed an answer of general denial except for an admission of ownership of the automobile. The plaintiff introduced the following evidence: William B. Terhune, a detective in the City of Rome, who seized the automobile, testified that he had come into possession of a business card bearing the following information: "Wood, For Quick Delivery Call Mickey McGuire, Phone 8486, Be-gorra he keeps good stuff. I can feel it trickle down to me toes." Laying his plan to apprehend the defendant in the illegal sale of intoxicants, Terhune telephoned the number on the card; the person answering the call stated that he was Mickey McGuire, the wood man, and Terhune inquired if he had anything, to which the person stated that he did not at that time but would have several brands of whisky later in the day. Terhune ordered four quarts of "Black Label" to be delivered to him at a certain time and place, and within two minutes of the appointed time McGuire drove up and parked at the designated rendezvous. The automobile in which McGuire was driving, the one involved in this condemnation proceeding, was occupied by three other persons beside McGuire. McGuire and Jack Hicks occupied the front seat of the vehicle, and Richard Hicks and Carl Fowler occupied the rear seat. Each of the three passengers had a quart of whisky concealed in his shirt, and McGuire had a quart in the "dash" or glove compartment. McGuire denied that more than one quart belonged to him. On being interrogated whether or not any oral statement had been made to him by one of the Hicks boys in the presence of McGuire, Terhune stated: "Well, he told me that he would tell Mickey McGuire it was his whisky; he didn't have anything to do with it, and he would tell him to his face." Terhune further testified that they discovered certain "traps" welded under the floor and fenders of the automobile suitable for concealing at least a case of whisky, but that the traps contained no whisky. He also stated that all of the whisky found in the car was of the "Black Label" brand. On cross-examination, he was questioned concerning the identification of the person to whom he talked when he telephoned the number on the card, and stated: "Well, after talking to him over the telephone and after talking to him in person, from my knowledge, I am sure he [McGuire] was the man I was talking to, I think . . I am positive as far as I know." He further testified that, when one of the Hicks boys said that the whisky was not his, McGuire was present.
Oscar Williams, also a detective in the City of Rome, and who accompanied Terhune during the entire transaction, testified that they drove up behind the automobile in question at the appointed rendezvous at about 12:28 p. m. (the meeting had been scheduled for 12:30 p. m.), and inquired of the occupants of the car if they were having trouble or something, and that they said, "No," and he pulled open the dash and saw a quart of whisky, and asked where the rest of the whisky was that they had ordered, and that they began pulling it out of their bosoms; that the whisky was tax-paid. He further testified that he was with Terhune when Terhune dialed the number on Mickey McGuire's card and watched him dial it figure by figure. When the plaintiff rested his case, the court of its own motion directed a verdict for the defendant. The plaintiff made a motion for a new trial on the usual general grounds, and by amendment assigned error upon the direction of a nonsuit. The verdict was directed on October 24, 1947, and the motion for a new trial was overruled on December 12, 1947, and the plaintiff excepted. The bill of exceptions, signed by the judge on December 20, 1947, assigned error on the direction of the verdict and also on the overruling of the motion for a new trial.
The erroneous direction of a verdict may be made the basis for a ground of a motion for a new trial, or for a direct exception. Webb v. Hicks, 117 Ga. 335 ( 43 S.E. 738); Jones v. Bank of Lula, 135 Ga. 680 ( 70 S.E. 640). The motion for a new trial contained no assignment of error upon the direction of the verdict, and if the bill of exceptions is treated as a direct exception to the direction of the verdict, it came too late, as some 57 days had elapsed between the direction of the verdict and the tendering of the bill of exceptions. Nor will the general grounds of the motion for a new trial raise the question of the correctness of the direction of a verdict. Stone v. Hebard Lumber Co., 145 Ga. 729 ( 89 S.E. 814); Head v. Towaliga Falls Power Co., 27 Ga. App. 142 ( 107 S.E. 558). Even if the action of the court could be considered as nonsuiting the case, an exception to the grant of a nonsuit may not be made a ground of a motion for a new trial. Dixie Manufacturing Co. v. Ricks, 153 Ga. 364 ( 112 S.E. 370). The remaining and only question which is presented in this case for the determination of this court is whether or not there was sufficient evidence to authorize the verdict, and in this determination the verdict by direction is to be considered on the same footing as a jury verdict, as against the usual general grounds of a motion for a new trial. Marietta Trust Banking Co. v. Faw, 31 Ga. App. 507 ( 121 S.E. 244).
Floyd County is a "dry" or "one-quart-for-use-and-consumption-and-not-for-sale-properly-stamped" county, and governed by the general prohibition statutes. It is therefore unlawful for any one to possess whisky in that county unless he is exempted under the general prohibition statutes or can show that he comes within one of the exceptions of the repealing statutes. Counsel for the defendant seek to bring the defendant within the exception established in Code (Ann. Supp.) § 58-1073. Whether the defendant came within the statutory exception was a matter of defense. Barfield v. State, 59 Ga. App. 383 ( 1 S.E.2d 47). The evidence in behalf of the State shows that at the time McGuire's automobile was seized there were four quarts of properly stamped whisky in the automobile. McGuire claimed only one quart, which was discovered in the glove compartment. The other three quarts were upon the persons of three other occupants of the automobile. On the trial of the case the jury was authorized to find for the State on either of two theories: (1) if all four quarts belonged to McGuire; or (2) if only one quart belonged to him, and he failed to show that it was for his own use and consumption and not for sale, and that it was otherwise a legal possession of the one quart. We make no ruling in this case with reference to the first theory above set forth, because we have reached the conclusion that the evidence demands a verdict for the State on the second theory. If only one quart belonged to McGuire, he did not rebut the legal prima facie presumption that he possessed it illegally by showing that he had it for his own use and consumption and not for sale. The statement in Shafer v. State, 193 Ga. 754 ( 20 S.E.2d 34), upon which counsel for the defendant rely, that "all presumptions being in favor of innocence, possession of whisky in quantity within the one-quart limit . . is prima facie presumed to be lawful," has no application to this case. The statement was made with reference to events occurring in Fulton County, which is a "wet" county, where the repeal statutes govern. There was not, therefore, sufficient evidence to authorize the verdict and the court erred in overruling the motion for a new trial.
Judgment reversed. Sutton, C. J., and Parker, J., concur.