Opinion
35108.
DECIDED APRIL 29, 1954.
Violating liquor law. Before Judge Vaughn. Newton Superior Court. January 19, 1954.
Orrin Roberts, for plaintiff in error.
Roy Leathers, Solicitor-General, contra.
1. The evidence is sufficient to sustain the verdict of an attempt to illegally sell tax-paid Government whisky.
2, 3. The special grounds are not meritorious.
DECIDED APRIL 29, 1954.
Irvin Kelly was convicted of attempting to illegally sell alcoholic, spirituous, and intoxicating liquors. He filed his motion for new trial on the statutory grounds, and thereafter added special grounds thereto. The court denied the motion. On this judgment he assigns error.
The evidence, briefly but substantially, was to the effect that James W. Ballard, an employee of the Federal Alcoholic Unit, at the request of State authorities, went to the defendant's home about 9 at night, along with another officer, Mr. Causey. Ballard was met at the door of the defendant's house by the defendant's wife, and he informed her that he wanted to talk to the defendant. The defendant was called. Ballard stated to the defendant that he wanted a pint of white whisky. The defendant replied that he did not have white whisky, but that he did have some Government whisky, and then the defendant was asked its price. He replied "$5 per pint." The officer ordered a pint. The defendant took a few steps into the kitchen and the officer heard the defendant talking to the wife of the defendant, and just a few seconds later the defendant came out of the kitchen and went into the yard. The officer stepped into the kitchen to ascertain what was causing the delay. The defendant's wife was pouring vinegar out of a container to put some whisky into the container. The officer informed the defendant's wife that he did not want a bottle with the stamp broken, and the defendant's wife informed him that they only had whisky in quart containers. The officer agreed to take a quart. Then the officer went to the door. The defendant's wife went to the door also. The officer went back into the room. When the officer asked the price of the quart of whisky, the defendant informed him that the price was $10 per quart. Then the defendant told his wife to get the whisky. She stepped into the room next to the kitchen and brought back a quart of Government whisky. The officer took it and then informed the defendant that he was a "Government officer." Ballard did not offer to pay for the whisky. He then called officer Causey, who had remained in the yard up to that time and who had heard Ballard talking. He heard Ballard ask for the pint of whisky and heard the defendant name the price. Causey was in a car about twenty feet from the door. He could not hear well enough to know whether the voice he heard talking to Ballard was that of a male or female. After he went into the house he saw the quart of Government tax-paid whisky on the table. Newton County officers were called at that time and they came to the home of the defendant. After the county officers arrived, and examination of the premises was made and another quart of Government tax-paid whisky was found. About 21 quarts of beer were also found, some being in the refrigerator and some in a beer case.
The defendant denied selling any whisky but admitted having the two quarts of Government tax-paid whisky; one he claimed belonged to him, and the other the claimed belonged to his wife. The court directed a verdict in favor of the defendant for illegally selling whisky, but submitted to the jury the question of whether or not the defendant was guilty of an attempt to illegally sell Government tax-paid whisky.
1. As to the general grounds, the evidence sustained the verdict under Code § 27-2507. Since the officers did not pay the defendant any money for the whisky, the jury were authorized to believe that no sale was actually made, but that an attempt had been committed for the illegal sale of whisky. The husband is presumed to be in charge of and in control of the effects in the home. In this connection, see Williamson v. State, 40 Ga. App. 496 (2) ( 150 S.E. 464). The evidence is sufficient to sustain the verdict.
2. Special ground 1 complains of an excerpt from the charge of the court, as follows: "So far as the date is concerned, it would not be necessary that the State should prove that the alleged offense was committed on the exact date as charged in the indictment. But if the State should otherwise prove the allegations as charged, then so far as the date is concerned it would be sufficient if the alleged offense should be proven to have been committed at any time within two years before this indictment was returned by the grand jury."
Error is assigned on this excerpt because this portion of the charge was error and harmful to the defendant; that it was not applicable to the facts as proven; that it opened up an entirely different case, so that the jury might find the defendant guilty of an attempt to sell whisky at any time within two years prior to the return of the indictment; and that the excerpt was confusing to the jury. See Moore v. State, 11 Ga. App. 801 (2) ( 76 S.E. 159). There is no merit in this special ground.
3. Special ground 2 complains because the court admitted in evidence the following testimony of a State's witness: "I am W. W. Kitchens, and I am a police officer here in Covington. I had an occasion to go to the home of this defendant on the night of July 3. I went there because we received a call in regards to some whisky. Upon my arrival there, I saw Mr. Ballard and Mr. Causey. When I arrived there I saw a quart of whisky. One of the officers had it there, and we found some more, it was in the pantry in the front room facing South Street on a little shelf, and there was a half-gallon fruit jar in the back room that had the odor of whisky in it. We brought the two quarts of whisky in and carried it down to the jail and locked it up in the outhouse there in back of the jail. We also took his beer. We took two full cases and I don't remember just how many." It appears from this ground that counsel for the defendant stated: "Now, Your Honor sustained the objection a while ago, he's going right back into it."
When counsel for the defendant made this statement, the court immediately made the following statement: "Just a minute. The court understood that part of the defendant's statement. He stated that some beer was carried away by certain officers, and the court instructs the jury, this defendant is not being tried for the sale of beer. That it is not unlawful to possess beer unless it's possessed for the purpose of sale and that is not charged in this indictment. Now the court instructs you gentlemen that in this case you are not concerned with any questions pertaining to the beer, unless or insofar as it may go to the question of credit or credibility that you . . . or weight that you will accord to the defendant's statement or other testimony or evidence in the case."
The objection, being incomplete, raised nothing for this court to pass upon. The allegations in this special ground do not show anything which brought the defendant's character into issue or anything intended to discredit the defendant's statement. The defendant in his statement said in effect that the officer carried beer from his home, which belonged to his wife. This special ground is not meritorious.
The court did not err in denying the motion for new trial.
Judgment affirmed. Townsend and Carlisle, JJ., concur.