Opinion
35299, 35300.
DECIDED OCTOBER 19, 1954.
Violating liquor law. Before Judge Boykin. Heard Superior Court. May 12, 1954.
James E. Weldon, Charles L. Goodson, A. J. Whalen, Jr., for plaintiff in error.
Wright Lipford, Solicitor-General, contra.
1. We do not pass upon the evidence as to the general grounds, since this case is to be tried again.
2. Special ground 1 shows reversible error for the reasons given in the body of the opinion.
3. Special grounds 2, 3, and 4 require no reversal.
DECIDED OCTOBER 19, 1954.
The grand jury at the September term, 1953, returned two indictments against Robert Folds. The indictment in case number 35299 charged the defendant with illegally possessing and controlling non-tax-paid alcoholic liquors in Heard County. The indictment in case number 35300 charged the defendant with having illegally transported such liquors in Heard County on the same date. The two indictments grew out of the same transaction. Counsel agreed to try the two cases together, and they were tried together on March 23, 1954. The trial resulted in a verdict against the defendant on both indictments. The defendant filed separate motions for a new trial as to each conviction on the usual general grounds, and thereafter added several special grounds to each motion.
The trial judge denied the motion for a new trial in each case. The defendant assigns error on such denial in each case. The judge instructed the jury as to the indictment charging illegal possession of the liquors and, immediately following, charged the jury with reference to the indictment regarding the illegal transporting of the liquors. The same counsel represented the defendant in both cases. While counsel filed separate briefs in each case, they are so interlapping regarding both verdicts that we will deal with them together. The evidence adduced on the trial is substantially as follows:
Virgil Bledsoe, Sheriff of Heard County, testified: He and a Mr. Mooney met a certain 1940 Ford coupe on a road in Heard County, Georgia; he recognized the man driving the Ford coupe at something like 75 to 100 yards away on a dirt road; witness's car was traveling south at approximately 6 o'clock in the afternoon on August 27, 1953; the person driving the 1940 Ford coupe was the defendant, Robert Folds (plaintiff in error in this case); he held to the center of the road, and the Ford coupe pulled up to approximately 10 or 12 feet to his bumper and almost came to a stop; his door on the driver's side was opened to get out and Mr. Mooney opened the door to get out on the other side, when the Ford coupe was snatched in low gear and jumped a ditch and went by him; witness and Mr. Mooney backed approximately 200 yards to turn around, and Mr. Mooney took the tag number of the Ford coupe; that he and Mr. Mooney chased the Ford coupe many, many miles on and off paved roads down into Troup County, at a rate of speed from 90 to 100 miles an hour; he radioed the State patrol; witness and Mr. Mooney were out of sight of the Ford coupe on several occasions; the State patrol blocked a narrow dirt road near Abbottsford, Georgia, and the driver of the Ford coupe jumped out and ran. The driver had already left the automobile when witness arrived; they searched the Ford coupe and found 147 gallons of non-tax-paid liquor; the Ford coupe was taken back to Heard County, and condemned; witness positively recognized Robert Folds, but the condemnation papers were never served on Mr. Folds; several days later, Mr. Folds was notified that warrants were pending against him in Heard County; the defendant made bond a few days later in Heard County, Georgia. Witness showed that there was dirt on the windshields of both cars; the 1940 Ford coupe was not registered in the name of Robert Folds.
D. B. Phillips, testified for the State: He bought the tag that was found on the 1940 Ford coupe; it was purchased for a 1949 Ford, and he had never owned a 1940 Ford coupe.
Troy Owens, State trooper, testified for the State: He knew the defendant and had known him for approximately three and a half years; he did not live in the neighborhood in which the defendant lived; the defendant lived approximately seven miles from LaGrange, Georgia; he knew the character and reputation of the defendant, and that it was bad.
Sam Cook, a witness for the defendant, stated that he lived approximately 300 yards off the Roanoke Road; he remembered the date that the whisky car stopped down in front of his house, it was late in the afternoon; the Sheriff of Heard County asked him if he could search his house, he was searching for a man driving the Ford coupe; witness asked the sheriff if he knew the party that was driving the whisky car, but the sheriff told him that he wasn't sure that he knew the driver of the car, but thought that he did; witness testified that he never had a conversation with this man. The defendant made a statement in the nature of a general denial.
1. We do not pass upon the evidence as to the general grounds, since the case is to be tried again.
2. We will next deal with the amended grounds of the motion for a new trial. There are four amended grounds in each case, and each ground in each case is the same. So, we will deal with the two cases together as to the special grounds.
Special ground 1 assigns error as follows: "Because the following material evidence was illegally admitted by the court to the jury, over the objection of movant, to wit: `Do you know his (Mr. Folds') character and reputation?"
"Defendant's Counsel: Now, wait a minute, now if it pleases the court, I object to this line of testimony on the ground that it places the defendant's character in issue and the defense doesn't believe that they have placed the defendant's character in issue, and on the further ground that the solicitor hasn't laid the proper foundation, and this is a mere conclusion of the witness, he says he has known him only three and a half years. The Court: Overrule the objection, go ahead. The Solicitor-General: If the court please, the defendant's character has been put into evidence under the statement he made, his character as pertaining to whisky.
"Defendant's counsel: His general character is not in issue and we would like to reserve our objection. The Court: Overrule the objection. Defendant's Counsel: Do you know the general character and reputation of Robert Folds in the community where he lived? Trooper Owens, for the State: A. Yes, Sir. Q. Is it good or bad? A. Bad."
The defendant's statement concerning his reputation as it relates to this ground is: "I lived in Troup County all my life and I haven't had any whisky trouble whatsoever in Troup County. Never been arrested for whisky, never been searched, my house has never been searched. . ." It will be observed that it is the contention in this ground that the defendant by his statement above quoted, put his general character in issue. It is the contention of the defendant that this did not put his general character in issue. Without elaborating on the many decisions on this point, we will merely cite some of them which to our minds conclusively hold that this statement of the defendant did not put his general character in issue. See Carroll v. State, 77 Ga. App. 251 ( 48 S.E.2d 491); Knighton v. State, 40 Ga. App. 489 ( 150 S.E. 432); Rhodes v. State, 33 Ga. App. 827 ( 128 S.E. 217); Spear v. State, 51 Ga. App. 29 ( 179 S.E. 417); Sikes v. State, 76 Ga. App. 883 ( 47 S.E.2d 677); Wiggins v. State, 80 Ga. App. 258 ( 55 S.E.2d 842).
It must be kept in mind that, when the defendant puts his general good character in issue, the State may rebut it by evidence as to his general bad character but not by specific acts. When a defendant puts his character in issue in his statement regarding a specific transaction and place, the State can then rebut a statement regarding such transaction and place referred to. On this view the court committed reversible error in allowing, over objections of the defendant, proof of his general bad character.
3. Special ground 2: In view of the ruling in special ground 1, the complaint in this special ground is eliminated.
Special grounds 3 and 4 complain that the court should have specifically charged the jury that they should first find the defendant guilty of illegally possessing such liquors before they could find him guilty of illegally transporting intoxicating liquors.
It must be kept in mind that these two indictments were tried together, and the court first instructed the jury with reference to possessing intoxicating liquors and immediately thereafter charged the law with reference to transporting the intoxicating liquors. It would be impossible for this court to know which verdict the jury found first, but it is clear that the two verdicts were signed approximately simultaneously, because both cases were being tried together, by agreement. So the jury did on the same trial and at the same time find the defendant guilty of possessing the liquor and of transporting the same. We find nothing illegal or inconsistent with either of the verdicts. Special grounds 3 and 4 are without merit.
The court erred in denying the motion for a new trial as to special ground 1. The other special grounds are without merit.
Judgment reversed. Townsend and Carlisle, JJ., concur.