1. Where in an indictment containing two counts the phrase "contrary to the laws of said State, the good order, peace and dignity thereof," does not appear at the conclusion of each count, but such phrase does appear at the conclusion of the indictment, it will be held, under the authority of Lee v. State, 81 Ga. App. 829
(60 S. E. 2d, 194), that the indictment is not subject to demurrer for this reason.
2. The evidence authorized the verdict and the court did not err in overruling the motion for a new trial for any reason assigned.
The defendant, Tommie Morris, was charged in an indictment in two counts with the offense of possessing contraband whisky, commonly denominated, "moonshine"; and with the offense of possessing and controlling unstamped liquors in violations of Code (Ann. Supp.) 58-1056. He was tried and convicted on both counts and sentenced to ten months on the public works. His motion for a new trial was overruled and he excepted.
One phase of the evidence showed that the defendant lived in a house just off one of the public roads in Bulloch County. His house is just off a deep curve in the road and is on the west side of the road. His yard is fenced and has a large gate through which wagons and automobiles can pass just in front of his house, and travel through his front yard and around his house to the north, and behind his house is another gate which opens into what appears to be a pasture road, which was not used by the public at the time the prohibited liquor was found on the road. This pasture road leads in a westerly direction alongside of the field fence of one of the defendant's fields. On the other side of the road are woods. There is apparently no travel on this road through Mr. Morris' yard, except travel by Mr. Morris, the defendant. Just south of Mr. Morris' house is another road which leads through his property to a sawmill site located in his back woods. There was no sawmill traffic on this road and the liquor in question was not found on this road. These two roads do not intersect nor do they run parallel. They are several hundred yards apart. The pasture road leads through the yard of the defendant and in order to travel it, one must go through two gates in the defendant's yard. On this pasture road is located the defendant's hog pen about five steps from his back gate. Beyond this and about 125 steps from the defendant's house, the officers in question found ten gallons of whisky and several other containers which smelled of whisky. There is a fence around the defendant's property and the whisky was found just beside the pasture road in the bushes on the defendant's property. Paths were found leading to the whisky which were well beaten out. The whisky was in pasteboard boxes. There were some 25 or 30 empty pasteboard boxes there in the woods at the same site at which the whisky was found and these boxes were of the same type as those which contained the whisky.
Walton Usher, Solicitor-General, contra.