Opinion
33014.
DECIDED JUNE 7, 1950.
Violating liquor law; from Statesboro City Court — Judge Cohen Anderson. January 16, 1950.
William J. Neville, W. G. Neville, for plaintiff in error.
1. The evidence supports the verdict on the general grounds.
2. The special grounds are without merit for the reasons set out in the body of the opinion.
DECIDED JUNE 7, 1950.
The defendant was convicted of possessing non-tax-paid whisky. A motion for a new trial was made on the general grounds, which was later amended by adding two special grounds. The court overruled the motion for a new trial, and the case is properly before this court for review.
The evidence shows substantially the following: that the chief of police of Bulloch County, Georgia, testified that he knew Earl Williams; that he had an occasion to see him on September 13, 1949; that upon information, the officer went to a night club, talked with another person, then the defendant Williams went toward his home, that the officer observed the defendant as he returned to the night club; that when the defendant returned he had whisky in a jar; that about the time the defendant passed the officer the defendant saw the officers and broke the jar and fled; that moonshine whisky was in the jar, with no revenue stamps on it; that the witness failed to save any of the whisky, but witness and the other officer smelled of the spilled liquid, and that it was whisky; that after the defendant fled from the scene, the officers went to the home of the defendant, and the defendant was arrested the next morning.
A county policeman of Bulloch County testified substantially as did the chief of police.
There was no question raised of identification of the defendant.
1. It is our opinion that the circumstances surrounding the operations of the defendant, together with his flight, were amply sufficient to sustain the jury's verdict of guilty. See a full discussion of the same situation in the case of Williams v. State, ante, 748. There is no merit in the general grounds.
2. Special ground 1, complains of the charge of the court in regard to flight, the court charging the following excerpt: "Flight may be considered by the jury as a circumstance to prove the guilt or innocence of the accused." Error is assigned on this excerpt for the reason that it is contended that by such charge the court gave the jury a definite instruction that flight had a probative value as to the guilt or innocence of the accused, when in fact the evidence of flight should only be considered by the jury as a mere circumstance, along with all of the evidence in the case, not for the purpose of proving the guilt or innocence of the accused, as charged by the court.
The court's full charge on this point was as follows: "I charge you further, gentlemen, the law of flight. Flight may be considered by the jury as a circumstance to prove the guilt or innocence of the accused. Every man, however guilty, has a right to shun an illegal arrest though, by flight. But now that is merely a circumstance, gentlemen, for you to take into consideration in proving the innocence or guilt of the accused." Whether flight is reasonable and satisfactorily explained is a question for the jury. Smith v. State, 46 Ga. App. 351; Loughridge v. State, 63 Ga. App. 263. We think that the court put the flight of the defendant on a basis for the jury to fairly determine whether such flight indicated guilt or innocence, which is always the ultimate province of the jury. Counsel for the defendant have cited us to no authority to sustain the contention that the charge of the court was harmful and prejudicial to the defendant, and requires a reversal. This special ground is without merit.
3. Special ground 3, goes to the contention that the court failed to charge the form of the verdict. We have covered this point fully in the case of Williams v. The State, ante. This ground is without merit.
The court did not err in overruling the motion for a new trial for any of the reasons assigned.
Judgment affirmed. MacIntyre, P. J., and Townsend, J., concur.