Opinion
39500.
DECIDED MAY 17, 1962. REHEARING DENIED MAY 30, 1962.
Liquor violation. Dodge Superior Court. Before Judge Whaley.
A. Russell Ross, for plaintiff in error.
Albert D. Mullis, Solicitor General, contra.
1. Admissions of the accused in open court, made as a part of his statement on the trial, may be treated by the jury as direct evidence of such fact.
(a) Where a defendant, in his statement, admits as true certain facts, the illegal admission into evidence, over proper objection, of evidence tending to prove such admitted facts does not show harmful error.
2. Whether the defendant presented sufficient evidence to rebut the inference arising from the liquor being found in his place of business was a question for the jury.
DECIDED MAY 17, 1962 — REHEARING DENIED MAY 30, 1962.
The defendant was convicted of possessing more than one quart of tax-paid alcoholic liquors and beverages in a dry county, a misdemeanor. After such conviction his amended motion for new trial was overruled and he now assigns error on such adverse judgment.
1. The defendant contends that the trial court erred in admitting in evidence, over objection, testimony of the arresting officers that they found on the premises of the defendant's business, a restaurant, more than the legal quantity of tax-paid liquor because such evidence was discovered as the result of an illegal search and seizure. "An admission of the accused in open court, made as a part of his statement on the trial, may be treated by the jury as direct evidence of that fact." Hargroves v. State, 179 Ga. 722 (4) ( 177 S.E. 561). In his unsworn statement to the jury the defendant stated that it was true that the officers found the whisky on the shelf behind the counter in his cafe, but only a part of it, less than two pints, was his. Such statement admitted that more than the legal quantity of distilled, vinous and alcoholic liquors and beverages was in the defendant's cafe and the admission of the testimony objected to, if error, was not harmful, for where a defendant in his statement admits certain facts as being true the admission of illegal evidence over proper objection of the same facts is not harmful error. See Gatlin v. State, 18 Ga. App. 9 ( 89 S.E. 345); Shields v. State, 22 Ga. App. 618 (3) ( 97 S.E. 90); Brannan v. State, 43 Ga. App. 231, 233 ( 158 S.E. 355); Mayes v. State, 108 Ga. 787 ( 33 S.E. 811).
2. "Whether or not the defendant presented sufficient evidence to rebut the inference arising from the finding of the liquor in his place of business was question for the jury." Kent v. State, 105 Ga. App. 312, 314 ( 124 S.E.2d 296). The evidence authorized the verdict, and the trial court did not err in overruling the defendant's amended motion for new trial.
Judgment affirmed. Frankum and Jordan, JJ., concur.