Opinion
33926.
DECIDED FEBRUARY 19, 1952.
Violating liquor law; from City Court of Floyd County — Judge Kelly. November 5, 1951.
Hicks Culbert, for plaintiff in error.
Chastine Parker, Solicitor, contra.
The evidence authorized the jury to find that the defendant on the date alleged transported moonshine whisky, an intoxicating and spirituous liquor, in Floyd County; and it was not error to deny the defendant's motion for a new trial, which was based solely on the general grounds.
DECIDED FEBRUARY 19, 1952.
The accusation in the City Court of Floyd County charged James Locklear with having on August 10, 1950, transported in Floyd County intoxicating and spirituous liquors. The defendant pleaded not guilty, and a verdict was rendered finding the defendant guilty of transporting such spirituous liquors in said county. The defendant moved for a new trial on the general grounds only, and to the judgment overruling said motion and denying a new trial he excepts.
Alton White — one of the officers arresting the defendant — who signed the accusation as prosecutor, testified for the State that on August 10, 1950, he and his partner were in their police automobile and saw the defendant driving a Chevrolet truck in the City of Rome, said county; that they drove their car in behind the defendant, who was in the truck by himself, and they pulled along by the side of the defendant and told him to pull over and stop; that "he pulled it over to the curb — ran a half a block before he stopped"; that "we did not know what he was doing"; that "he was leaning back and leaning over in the floorboard of the truck, and then he stopped and got out"; that the witness and his partner found a wide-mouth gallon jug "setting" on the floor of the truck, and also a quart bottle of turpentine; that "turpentine was all over the seat of the truck and all over his (defendant's) clothes and the bottle was setting between his feet and the floor board"; that "we brought him to headquarters for possessing and transporting whisky"; that "in my opinion that was whisky in that jug"; and that the top or cap was off the jug. The State Oil Chemist, Dr. Wilson, testified that he was frequently called upon by law-enforcement officers of the State to analyze liquors; that the liquid in this large jug was given to him to analyze; that it appeared to be whisky with turpentine mixed in it; that it showed 44.2 percent alcohol, which we would say would be 88.4 percent proof; that the "nature of that was ethyl alcohol, that is the alcohol that is part of whisky"; and that in his opinion "that was whisky given to me in that sample." The witness further testified that "ethyl alcohol is found in corn whisky. I could smell that alcohol. I have had experience in smelling corn whisky. From what I smelled it was ethyl alcohol but it was in corn whisky apparently." Upon being recalled, this witness testified that the ingredients "found in the sample show up to be moonshine whisky."
The sole question for decision here is, did the court err in denying to the defendant a new trial, in that the evidence demanded a finding by the jury that the defendant did not have in this truck and was not transporting spirituous and intoxicating liquors, but that he had a preparation of alcohol and turpentine to be used in thinning certain paints preparatory to painting, which the evidence showed without dispute the defendant had purchased, and it appearing that he was at the time actually engaged in doing some painting for himself. While there was evidence from which the jury would have been authorized to find that the defendant had in his possession in this truck on the occasion in question some alcohol, mixed with turpentine, which he had purchased at a paint supply store, and which was being used by him at that time, and that this was the liquid found in the truck driven by the defendant, and which the officers claimed was moonshine corn liquor — the evidence did not demand such a finding by the jury. There was ample evidence that at the time the defendant was stopped by the officers and arrested he had in the truck moonshine corn whisky, which liquor had some turpentine mixed therein. Under the evidence, the jury were authorized to find, as the jury did, that the large or wide-mouth jug contained corn whisky, which was moonshine and on which no State tax had been paid, and that turpentine had been poured into this jug probably just before the whisky was taken from the defendant's truck by the police officers. Therefore, the verdict finding the defendant guilty of having and transporting intoxicating liquor in this truck was not without evidence to support it and was not contrary to law, but was supported by the evidence. While a verdict in favor of the defendant would have been authorized, it was not demanded under the facts here.
It follows that the trial judge did not err in overruling the defendant's motion for a new trial which was based solely on the general grounds.
Judgment affirmed. MacIntyre, P. J., and Townsend, J., concur.