Opinion
38694, 38695.
DECIDED APRIL 28, 1961.
Illegal possession of whisky. Cobb Superior Court. Before Judge Manning.
Howell C. Ravan, for plaintiffs in error.
Luther C. Hames, Jr., Solicitor-General, Ben F. Smith, contra.
The trial court erred in denying the amended motions for new trial.
DECIDED APRIL 28, 1961.
Thomas George and Howard Hood were indicted by the Cobb County grand jury for the unlawful possession of taxpaid whisky on June 30, 1959. The defendants were tried jointly and the jury returned a verdict of guilty against each defendant. The defendants excepted to the judgment of the trial court denying their motions for new trial as amended, bringing the cases to this court for review. The assignments of error in each case are identical.
The evidence for the State showed that a raid was made on the Bomber City Elks Club in Cobb County on June 30, 1959, where the officers found only one person, he being the codefendant Howard Hood. Hood, in response to an inquiry about where the liquor was kept, showed the officers a locked cabinet where they found 62 half-pints, one full quart, one fifth, and 4 broken fifths of assorted brands of tax-paid whisky. Some of the whisky was labeled with names of individuals on the bottles; some 4 pints of vodka and 49 bottles of bourbon had no names on them. Hood produced the key with which he unlocked the cabinet and told the officers that he was an employee of the club. Witnesses for the defendants testified that Thomas George was the manager (operator) of the club and that he kept a key to the club.
The defendant George admitted that he owned the property on which the club is located. He contends that the liquor found in the club was owned by various members of the club, that it was located in the downstairs portion of the club over which he had no control, that he was not present when the raid was made and therefore could not have been in possession of the whisky.
1. Special ground 1 attempts to assign error on eight different objections to testimony of the witness Sheriff Sanders. It appears that some of this testimony was allowed, other ruled out, and the jury instructed to disregard certain portions. This special ground contains eight pages of testimony, numerous objections by counsel for the defendants, colloquies between counsel and the court and other matters, and is therefore too improperly framed and confusing to present any question for decision. Rider v. State, 196 Ga. 767 (8) ( 27 S.E.2d 667).
2. Special ground 2 complains of the admission in evidence of the sworn answer of the defendant George in a civil case in Cobb Superior Court, said answer containing a paragraph to the effect that the defendant George resigned as manager of the Bomber City Elks Club on July 24, 1959, the alleged offense in the instant case having occurred on June 30, 1959, and another paragraph setting forth that he was the owner of the premises in question but had leased same to the Bomber City Elks Club on July 29, 1959. The court did not err in admitting this pleading into evidence, it having been subscribed and sworn to by the defendant Thomas George. Farmer v. State, 100 Ga. 41 (3) ( 28 S.E. 26).
3. Special ground 5 complains of the following excerpt from the charge of the court, "It is still unlawful to possess even a quart of tax-paid intoxicating liquor in this county, such as Cobb, which is generally referred to as a dry county, unless the evidence shows and it has been proven to you beyond a reasonable doubt that they came into possession of such liquor in the amount of one quart or less, and that he purchased it from a retail dealer for personal use and did not intend to dispose of it unlawfully," on the ground that such charge restricted the defendant's defense and was not sound as an abstract principle of law in that no such burden of proof rested upon the defendant. The charge complained of is clearly erroneous as an abstract principle of law and under prior decisions of this court a reversal is demanded. Jenkins v. State, 93 Ga. App. 360 ( 92 S.E.2d 43); Chalker v. State, 99 Ga. App. 278 ( 108 S.E.2d 178) and Brown v. State, 94 Ga. App. 542 ( 95 S.E.2d 302). While the court in several other portions of the charge clearly placed the burden on the State to prove the guilt of the accused beyond a reasonable doubt, it cannot be said that the charge complained of was not confusing and misleading to the jury and therefore harmful error. Where the jury is "left to pick and choose between the incorrect principle and the correct principle, an assignment of error on the incorrect portion of the charge is meritorious." Chalker v. State, supra.
4. Special grounds 6, 7 and 8, complaining of portions of the charge, are without merit for any of the reasons assigned therein.
5. Special grounds 3 and 4 of the motion for a new trial are not passed upon as they are not likely to recur. The general grounds are not passed upon as the case is to be tried again.
For the reasons stated in division 3 of this opinion, the trial court erred in denying the amended motions for new trial.
Judgment reversed. Townsend, P. J., Carlisle and Frankum, JJ., concur.