Opinion
36144.
DECIDED APRIL 17, 1956.
Liquor violation. Before Judge Hicks. Dublin City Court. January 17, 1956.
C. C. Crockett, W. H. White, Aretha M. Smith, for plaintiff in error.
E. L. Stephens, Jr., Solicitor, contra.
1. The motion to dismiss the writ of error is denied.
2. While it is true that, upon the trial of one under an accusation charging that he did "unlawfully have, control, and possess a quantity of intoxicating, spirituous, vinous, malted, alcoholic, fermented and mixed liquors and beverages," in Laurens County, contrary to the laws of this State, this court will take judicial notice that such county is a dry county ( Tanner v. State, 90 Ga. App. 789, 790, 84 S.E.2d 600); and while it is true that, in the absence of a special demurrer requiring that the accusation be made more particular, the State may show that the defendant illegally possessed a prohibited quantity of intoxicating liquors in one of four ways: "(1) By the defendant having any amount of whisky on the containers of which there are no proper State revenue stamps; (2) having more than one quart of whisky upon which the tax has been paid and upon the containers of which there are proper revenue stamps; (3) [by the defendant having] one quart or less of whisky upon which the tax has been paid and the container of which bears proper revenue stamps but held by the defendant for the purpose of sale and not for use and consumption; and (4) [by the defendant having] one quart or less of whisky upon which the tax has been paid and the containers of which bear proper revenue stamps but which was not procured from an authorized dealer." ( Jenkins v. State, 93 Ga. App. 360, 363, 92 S.E.2d 43); where the trial court's only instruction upon the question of the possession of intoxicating liquors is, "Gentlemen of the jury, the defendant, Levi Morris, stands charged in this court by way of accusation with the offense of possessing unstamped illegal corn whisky," the jury is expressly limited by the court's charge to finding whether or not the containers of the whisky which the defendant is charged with possessing, properly bore the requisite revenue stamps required by law; and where the evidence fails to show whether or not the whisky in question was stamped or unstamped, a verdict finding the defendant guilty was without evidence to support it and contrary to law, as the jury must take the law as expounded by the court ( Ridenhour v. State, 75 Ga. 382, 385; Berry v. State, 105 Ga. 683, 31 S.E. 592; Rouse v. State, 136 Ga. 356, 71 S.E. 667); and no other law regarding the illegal possession of intoxicating liquors was given in charge, and the jurors were left without any law whatsoever upon that subject to guide them in making their findings. Accordingly, a new trial must be ordered.
3. In misdemeanors the uncorroborated testimony of an accomplice or a participant in the offense, if believed and acted upon by the jury, will support a conviction.
4. The other assignments of error are such as are not likely to recur upon another trial and are not considered.
DECIDED APRIL 17, 1956.
Upon the trial of the defendant under an accusation charging that he did, on March 18, 1952, "unlawfully have, control, and possess a quantity of intoxicating, spirituous, vinous, malted, alcoholic, fermented and mixed liquors and beverages . . . ," the defendant was found guilty and sentenced to pay a fine of $500 or spend 12 months in jail. His motion for a new trial, based upon the usual general grounds and 5 special grounds, was overruled and he excepted.
1. The motion to dismiss the writ of error, on the ground that the bill of exceptions was not presented to the trial judge within 20 days from the date of the judgment sought to be reviewed, is denied. The defendant assigns error upon the judgment denying his motion for a new trial on January 17, 1956. The bill of exceptions was presented to and signed by the trial judge on February 8, 1956, within a period of 21 days. By the terms of section 7 of the act of 1900 (Ga. L. 1900, p. 117), the City Court of Dublin is to have the same rules of practice and procedure as the superior courts. Code § 6-902, as amended by the act of 1953 (Ga. L. 1953, Nov.-Dec. Sess., pp. 279, 280; Code, Ann. Supp., § 6-902), governing the time within which bills of exceptions in the superior courts must be presented to the trial judge, provides for presentation within 30 days.
2. Headnotes 2 and 4 require no elaboration.
3. Special ground 5, in which complaint is made that the only evidence showing the defendant's possession of the whisky was that of an uncorroborated accomplice, is without merit. It is well settled that in misdemeanors the uncorroborated testimony of an accomplice or participant in the offense, if believed and acted upon by the jury, will support a conviction. In felony cases a different rule obtains. Dobbs v. State, 44 App. 749, 750 (162 S.E. 845); Branch v. State, 46 Ga. App. 66 ( 166 S.E. 685).
Judgment reversed. Gardner, P. J., and Townsend, J., concur.