Opinion
33718.
DECIDED OCTOBER 25, 1951.
Violating liquor law; from Hall Superior Court — Judge Edmondson. May 22, 1951.
Frank B. Stow, Robert E. Andrews, for plaintiff in error.
Jeff C. Wayne, Solicitor-General, contra.
1. The evidence sustains the verdict.
2. The assignments of error on the special grounds, involving the admission of a photograph over objection of the defendant, are without merit.
DECIDED OCTOBER 25, 1951.
The defendant, at the January term, 1949, of the Superior Court of Hall County, was indicted for illegally making intoxicating liquors. He was later tried and convicted. He filed his amended motion for a new trial, which was overruled. On this judgment he assigns error here.
The evidence for the State substantially shows that the chief of police of the City of Gainesville, Georgia, together with three other persons, went to the home of the defendant on a day when the defendant was away. The defendant's wife was there. No person other than the defendant and his wife lived in the house. The witnesses for the State testified that they found, under the bed in the residence of the defendant, a case of non-tax-paid whisky in fruit jars or cans. There were no stamps attached thereto. The chief of police left word with the defendant's wife to come by the officer's office and make bond. The chief of police and the other parties who testified for the State related that they returned to the defendant's house the next morning and the defendant was there. They obtained a key from the defendant and entered the basement of his house through a door opening from the outside. There was no passageway to the basement from the inside of the house. The key which the defendant furnished the officer was an ordinary passkey and would unlock almost any common door lock. The witnesses found in the basement several barrels of fermented chicken feed or mash, a number of fruit jars similar to the ones containing the liquor which they had found under the bed the day before, and a furnace. The furnace did not have a still on it at the time the witnesses examined it. While some of the witnesses were examining the basement, another witness went to the woods some 75 to 100 yards from the residence of the defendant, and found a part of a whisky still — "the part that fits on the furnace." The still cap was not found. The part of the still which was found was as close to other houses as it was to the defendant's house. The part of the still which was found was placed on the furnace in the basement of the defendant's house. The still had marks on it and fitted on the furnace perfectly, according to these marks. The witnesses testified, and the photograph revealed that the fermented mash used in the manufacture of whisky, and empty mason fruit jars similar to the ones found under the defendant's bed the day before, were in the basement around the furnace. The witnesses testified that, of course, they did not know if the still that they found had ever been on the furnace in the basement, but it fitted perfectly. The witnesses also testified that the contents of the fruit jars found under the bed were whisky. The defendant contended that he did not make any whisky or possess any — that he had been away from home about three weeks, and did not have any whisky in his house under the bed; that he had a case of anti-freeze, except that the case was short one and one-half gallons. As stated above, the witnesses for the State testified that the jars found under the bed contained non-tax-paid white whisky and not anti-freeze. The witnesses for the State testified that, considering what they had found in the basement, including coal in the furnace, the mash, and the fruit jars, they concluded that whisky had been manufactured there. Such, in brief, is the evidence.
1. Without commenting upon the evidence under the general grounds, suffice it to say that the evidence was abundantly sufficient to authorize the verdict.
2. (a) We come next to consider the special grounds. The State offered in evidence the photograph which the witnesses for the State had made after the still had been placed on the furnace. These objections are included in seven special grounds. Attached to the special grounds is an exhibit of the photograph. The errors assigned on the introduction of this photograph are: (a) that it did not show the true condition of the basement and what was in it at the time the witnesses went in the basement; (b) that the photograph was an attempt to get before the jury evidence that did not exist at the time the witnesses first entered the premises; (c) that the photograph was highly prejudicial and could serve no purpose other than to prejudice the minds of the jurors against the defendant; (d) that the evidence was objected to at the time it was offered, and the objection was overruled by the court and the photograph was admitted; (e) that it was material, prejudicial, and hurtful. Such, in substance, is the evidence objected to, consisting of the photograph and testimony pertaining thereto, on which special ground error is properly assigned.
(b) Let us inquire as to whether or not the errors assigned on the special grounds are meritorious. Counsel for the defendant strongly contend that the verdict of guilty is contrary to evidence and the principles of justice and equity, and that the judge erred in not granting a new trial under the principles of law contained in Code § 70-202; and also under the law contained in Georgia Power Co. v. Gillespie, 48 Ga. App. 688 ( 173 S.E. 755), which was in reference to the inadmissibility of evidence that does not represent the scene according to other undisputed evidence; and under the principles of law in Shaw v. State, 83 Ga. 92 ( 9 S.E. 768), concerning the introduction of a photograph; and also under Gossett v. State, 6 Ga. App. 439 ( 65 S.E. 162), which holds to the effect that, when any testimony is not only irrelevant but tends to prejudice the jury against the defendant in a case where his guilt of the offense for which he is being tried is not clearly made out by competent evidence, the defendant in such event has not had the fair treatment to which he is entitled under the law, and the judgment of guilty should be reversed. Such is the extent of the authorities cited and relied upon by counsel for the defendant for reversal. In our opinion these cases are not applicable under all the facts and circumstances appearing in the instant case, and the contentions in the general grounds are not meritorious.
In conclusion, we might add that the decisions which are controlling under the record of this case are: Butler v. State, 142 Ga. 286 ( 82 S.E. 654); Rose v. State, 184 Ga. 451 ( 191 S.E. 426; Ellington v. State, 204 Ga. 456 ( 49 S.E.2d 872); Anderson v. State, 206 Ga. 527 ( 57 S.E.2d 563); and Bell v. State 71 Ga. App. 430 ( 31 S.E.2d, 109). We will not comment on these cases, but viewed in the light of the facts of this case pertaining to the introduction of a photograph over objections, those cases speak for themselves, and to our way of thinking are conclusive that the court did not err in admitting the photograph for any of the reasons assigned.
Judgment affirmed. MacIntyre, P.J., and Townsend, J., concur.