Opinion
36767.
DECIDED JULY 11, 1957.
Illegal sale of whisky. Before Judge Long. Peach Superior Court. March 16, 1957.
Geo. B. Culpepper, III, for plaintiff in error.
William M. West, Solicitor-General, Hal Bell, Assistant Solicitor-General, contra.
1. The evidence amply supports the verdict as to the general grounds.
2. Where one is indicted for the sale of intoxicating liquor on a specific date it is not erroneous for the State to offer evidence of any transaction concerning the sale of intoxicating liquor within the statutory period of two years prior to the indictment, and it is not erroneous for the court to charge regarding the sale within the statutory period, where the State submits such evidence.
DECIDED JULY 11, 1957.
Henry Braswell, hereinafter called the defendant, was indicted for violating the prohibition law. Count 1 charged him with the illegal sale of whisky in a dry county. Count 2, charging illegal possession of whisky, was abandoned. The jury returned a verdict finding the defendant guilty on count 1, and he was sentenced to a nine-months term on the public works. He filed his motion for new trial on the statutory grounds and thereafter added one special ground by amendment. The motion was denied and it is to this ruling that the case is here for review.
The evidence shows substantially as follows: Mr. E. B. Rowell, a witness for the State, testified that around noon on November 18, 1956, he went with Sheriff Beeland and a driver, Mr. Reeves, to Byron on business; that the witness borrowed $10 from the sheriff. He left the sheriff's car and went by a Mr. Aultman's house and secured a pick-up truck and went to the home of the defendant, giving the defendant the $10 bill and receiving two pints of liquor in paper bags and two $1 bills in change. He put the liquor in his pocket, walked out to the pick-up truck and started out the defendant's driveway, whereupon the sheriff stopped him and confiscated the liquor in the paper bags. The witness testified that there was no other person besides himself and the defendant in the defendant's living room at the time he purchased the liquor; that the defendant's son came up after the sheriff had stopped the witness; and that when they got back to the courthouse he gave the sheriff the two dollars saying: "I told him there was his whisky and his two dollars. I borrowed ten dollars and he got the whole thing back."
On re-call, the same witness testified substantially that neither Mrs. Meservey nor Jack Kemp was in the defendant's living room at the time he purchased the two pints of liquor, and that he had bought liquor several times during the past two years from the defendant in Peach County.
On cross-examination the witness testified substantially: that he had gone to Byron on business with the sheriff which concerned collecting a taxi fare; that he had about $55 or $60 but he borrowed the $10 from the sheriff just to see if he would lend it to him; that after the sheriff took the two pints of liquor from the witness he followed the sheriff into Fort Valley, first to the jail and then to the courthouse.
Sheriff Beeland testified substantially as follows: That he loaned E. B. Rowell $10 and after carrying him by Mr. Aultman's to pick up the pick-up truck he, the sheriff, drove out to the Steakhouse which is located just outside Fort Valley on Highway 341 and adjacent to the defendant's home, parked his car roughly 200 yards from the defendant's home and watched. A few minutes later E. B. Rowell passed by in the pick-up truck, turned into the defendant's driveway, parked the truck and went inside. When Rowell returned a few minutes later, got into the truck and started out the driveway, Sheriff Beeland pulled in and cut him off before he touched the highway, whereupon he confiscated the two paper bags containing the two pints of liquor. Then he took the defendant into custody and a warrant was issued for him.
On cross-examination Sheriff Beeland testified substantially: that he changed cars after letting Mr. Rowell out at Mr. Aultman's; that he did not pre-arrange anything with E. B. Rowell; that it was his habit to watch people.
Mrs. Alma Meservey and Jack Kemp, witnesses for the defendant, testified substantially that they were present in the defendant's living room at the time the defendant was alleged to have sold E. B. Rowell the two pints of liquor and that they saw no such transaction take place. On cross-examination Mrs. Meservey testified substantially that she had not discussed the defendant's alleged innocence with anyone previous to testifying. On re-direct examination the witness admitted that she discussed the case with the defendant, Jack Kemp and the attorney for the defendant, Mr. Culpepper, in Mr. Culpepper's office.
The defendant, in an unsworn statement, said substantially that E. B. Rowell had come to his house for a visit but stayed only a few minutes; that if he had any liquor he did not get it from him [the defendant].
1. The evidence amply supports the verdict. The general grounds are not meritorious.
2. The one special ground contends that the court erred in charging the following excerpt: "The State contends in this case that E. B. Rowell, one of the witnesses for the State, went to the defendant's home and purchased two pints of whisky from the defendant and paid the defendant eight dollars for it. I charge you that if you find from the evidence that the State has shown to a moral and reasonable certainty and beyond a reasonable doubt that this defendant did, in this county, sell whisky, in any amount, at any time, within two years of the return of this indictment, you would be authorized, and it would be your duty, to convict this defendant." It is alleged that the charge was erroneous and injurious to him for the following reasons: "(a) That it was confusing and misleading to the jury. Defendant contends that the prosecution against him was based upon a transaction which allegedly occurred on November 18, 1956, said transaction having been the sale of two pints of liquor to E. B. Rowell, one of the witnesses for the State, for the sum of $8. Defendant offered direct positive testimony of witnesses to refute this charge; that in addition to testifying as to the transaction on which the trial was based, witness Rowell also testified that he had made other purchases of liquor from the defendant within a period of two years. This testimony was in a general way and set out no times, places or amounts. Under the charge as given by the court, the jury was authorized to believe the defendant's witnesses in refuting the sale on November 18, 1956, but could have believed the witness Rowell as to other sales. Defendant shows that the above charge was erroneous in that the court should have instructed the jury that should the jury not believe the defendant guilty of the sale of the liquor on November 18, 1956, they would be authorized to convict the defendant provided they could each agree upon the particular transaction involved."
Counsel for the defendant cites Abbott v. State, 11 Ga. App. 43, 45 ( 74 S.E. 621) in support of the contention that the case should be reversed. That case was reversed because the evidence did not show conclusively that the act was committed prior to the indictment, the court using the following language on this point: "It must affirmatively appear that the offense was committed before the finding of the indictment, and this is not shown by evidence that the criminal act was done some time within two years before the trial, the indictment having been returned some months prior thereto." It is our opinion that the ruling in Dickerson v. State, 91 Ga. App. 453, 454 ( 85 S.E.2d 782) is binding authority for the affirmance of the case at bar. In the Dickerson case this court said: "Under a general accusation charging a specific misdemeanor as having been committed on a given date, the State is not confined to evidence of transactions that occurred on the date alleged, but may offer evidence of any transaction tending to establish the commission of the crime within two years prior to the filing of such accusation . . . Cook v. State, 33 Ga. App. 571 (1) ( 127 S.E. 156); Holmes v. State, 7 Ga. App. 570 (3) ( 67 S.E. 693); Bowen v. State, 90 Ga. App. 538 ( 83 S.E.2d 211)."
The court did not err in denying the motion for new trial for any of the reasons assigned.
Judgment affirmed. Townsend and Carlisle, JJ., concur.