Opinion
34218, 34219.
DECIDED SEPTEMBER 19, 1952.
Violating liquor law; from Polk City Court — Judge Flournoy. June 17, 1952.
Hicks Culbert, for plaintiff in error.
Dan Winn, Solicitor, contra.
1. The assignment of error on the general grounds of the motion for new trial is abandoned.
2. The special grounds are without merit.
DECIDED SEPTEMBER 19, 1952.
Woodrow Beam was convicted in the City Court of Polk County on two accusations, one charging him with illegally transporting non-tax-paid liquor, and the other charging him with unlawfully possessing the same. The facts governing each case (No. 1146 and No. 1147) are the same, and we will write the cases together in one opinion.
Thomas Jefferson Jackson testified for the State that he was arrested on Treat Mountain Road in Polk County, operating a 1940 model Ford automobile, which contained eighty gallons of non-tax-paid liquor. He further testified that the whisky belonged to the defendant, for whom the witness was hauling it; that he was following a car along the road, because he was unfamiliar with the road; that he did not know who was driving the car he was following; that he did not know whether or not it was the defendant; that he got some gas and, after procuring the gas and load of whisky, he didn't know at that time where the defendant was; that he imagined the defendant had gone to see about paying for the whisky, or getting it down there "or something"; that he had at one time told the officers that the whisky belonged to him. He further testified that the whisky belonged to Woodrow Beam and to Buck Worley, and that they were following him on the Treat Mountain Road when the officer arrested him.
Clyde Rayford testified for the State materially as follows: That he was a State Trooper attached to the State Patrol in Polk County, Georgia; that he saw Jackson on top of Treat Mountain Road on the 18th day of October, 1951; that he stopped Jackson, and he found that Jackson had eighty gallons of "white whisky" in a Ford automobile; that when he stopped Jackson on the road and asked him about the whisky, Jackson told him that it belonged to Buck Worley and Woodrow Beam, and that they were following him; that in about fifteen minutes after arresting Jackson, Worley and Beam came along.
The defendant in making his statement denied that he knew Jackson. He denied the ownership of the car in which the whisky was being transported, and denied that he knew anything about the whisky, and further denied that he was guilty of the crime with which he was charged.
Counsel for the defendant admit that the testimony of Jackson is sufficient to make out a case insofar as the general grounds of the motion for new trial are concerned. A reversal of the judgment overruling the motion is urged on the two special grounds.
Special ground 1 assigns error in that the court, over objections of the defendant's counsel, admitted in evidence the testimony of the State Trooper to the effect that when Jackson was stopped on Treat Mountain Road, the trooper inquired of him how much whisky he had and Jackson responded that he had eighty gallons, and that it was not his whisky, but belonged to Beam and Worley. It is contended that such testimony was hearsay; that the statements of the witness, Jackson, were made out of the presence and hearing of the defendant, and were inadmissible against the defendant. We will not here go into the colloquy between counsel for the defendant and the court with reference to the testimony to which objection is made, since we deem it unnecessary. It is our opinion that the evidence was admissible for several other reasons: (a) It was a part of the res gestae. (b) The record clearly presents a conspiracy between the defendant and Jackson and the statement was made during the pendency of the criminal project. Thompson v. State, 166 Ga. 758, 777 ( 144 S.E. 301); Jones v. State, 63 Ga. 395. (c) It was admissible to show the conduct of the officer in stopping the car in which the defendant was riding. (d) If it were conceded that the admission of testimony was erroneous as specified in this ground, it would not require a reversal because the witness, Jackson, during the trial of the case, testified to the same thing himself. Martin v. State, 44 Ga. App. 276 ( 161 S.E. 371). There is no merit in this contention.
Special ground 2 complains because the court failed, without a written request, to charge the principle of laws applicable to impeachment of witnesses. It is contended in this ground that since Jackson admitted in his statement that he told the officers that at one time the whisky belonged to him, and on the trial of the instant case testified that it belonged to the defendant, such evidence was so contradictory that the law required the trial court to give the law regarding the impeachment of witnesses without a request, and to fail to do so was reversible error. This contention does not seems to be the law. Cady v. State, 198 Ga. 99, 110 ( 31 S.E.2d 38); Loomis v. State, 78 Ga. App. 336, 337 (8) ( 51 S.E.2d 33); Smith v. State, 79 Ga. App. 595, 599 ( 54 S.E.2d 378). Counsel for the plaintiff in error called our attention to no decision challenging the principle of law involved in either of the special grounds. This special ground is without merit.
The court did not err in overruling the motion for a new trial for any of the reasons assigned.
Judgment affirmed. Townsend and Carlisle, JJ., concur