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Possessing illegal whisky. Columbus City Court. Before Judge Land. November 7, 1958.
GARDNER, Presiding Judge.
Where, as here, there is sufficient evidence that a defendant is in possession of non-tax-paid whisky, and where, as here, a trial judge passes upon the law and the facts, the resulting judgment, based on such evidence, will not be reversed by this court.
Henry Campbell was tried in the City Court of Columbus on a charge of possessing non-tax-paid liquor, was found guilty and sentenced to serve twelve months on the public works. The defendant filed his motion for a new trial on the general grounds only, which the judge denied and to which the defendant now excepts and assigns error here.
The evidence shows substantially as follows: City Policeman, J. W. Chapman, testified that on April 14 he and another officer observed the defendant go in and out the back door of one Annie Mae Taylor's house in Muscogee County, Georgia, with a sack in his hand; that he saw him cross a plowed field and go to a ditch where he dug around awhile, planted the sack and returned to the house; that he returned in a few minutes to the same spot, uncovered the sack and removed a bottle from it which he took to two men waiting in the yard; that the two men drank the contents of the bottle and threw it down; that the witness picked up the bottle; that it was a one-half pint bottle which "had the odor of non-tax-paid whisky." The witness then went to the spot where he had observed the defendant digging and uncovered three pints and five one-half pints of whisky which did not bear Georgia State Revenue Tax Stamps, whereupon he arrested the defendant.
Annie Mae Taylor testified that she and several others in her house were arrested for gambling the night of April 14 but that there was no liquor in the house and no one had had a drink; that the defendant had come to her house a few minutes before the officers arrested him and told her that Clay was outside and asked her what Clay wanted; that she told him Clay was looking for some seed cane which she had in the back room of the house next door, where the defendant then went with Clay, and the next thing the witness knew, the defendant was arrested and her house was being raided.
Clay Jernigan testified that he came to Annie Mae Taylor's to get some cane and that the defendant was getting some for him when Mr. Chapman came and arrested them; that the witness did not see the defendant or any one with any liquor that night.
The defendant stated that he went to Annie Mae Taylor's arriving about the same time as Clay; that Clay wanted some cane and that he, the defendant, went through the house out the back door hooking the latch on the outside; that they were in the house next door getting the cane when Mr. Chapman arrested them; that the officers searched the house and found nothing, then went down in back of the house and came back in fifteen or twenty minutes with three pints and five one-half pints of whisky.
This case is here assigning error on the denial of the motion for a new trial based on the general grounds only. We will dispense with discussing cases which go to conviction where non-tax-paid whisky or intoxicating liquor was found on premises owned by a defendant. In the instant case there is no allegation that the whisky was found on premises owned or controlled by the defendant. The defendant was positively identified as being the person who was seen by a witness cross a field with a sack in his hand, and bury the sack at a certain place; later the defendant came back and uncovered the sack and removed a bottle from it, taking the bottle to two men waiting in the yard of one Annie Mae Taylor; that the witness picked up the bottle which had been thrown to the ground after the whisky had been consumed by the two men and found that the bottle smelled like whisky and "had the odor of non-tax-paid whisky." The same witness testified that he then went to the place where the defendant had been observed digging and uncovered three pints and five one-half pints of whisky, none of which bore the required revenue stamps. This evidence is sufficient to warrant conviction for possessing non-tax-paid whisky. See Williams v. State, 81 Ga. App. 748 (59 S. E. 2d 743) and Eberhart v. State, 88 Ga. App. 501 (76 S. E. 2d 832). In the instant case there was sufficient evidence that the non-tax-paid whisky was illegally in the possession of the defendant. The trial court resolved the case against the defendant and this court is of the opinion that the trial court did not err in the judgment rendered.
Judgment affirmed. Townsend and Carlisle, JJ., concur.
W. B. Skipworth, Jr., Solicitor, contra.
Grover C. Willis, Jr., for plaintiff in error.
Saturday May 23 00:34 EDT

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