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FITZGERALD v. THE STATE (two cases).
33221.
33222.
Violating liquor law; from Leesburg City Court-- Judge Forrester. June 5, 1950.
TOWNSEND, J.
1. (a) Code 81-1102, 81-1103, relating to the duty of the trial judge on request to write out his charge and file the same, after reading it, with the clerk of the court, have been liberalized by the Code of 1933 and the amendment of 1943 to Code 81-1102, so that where it appears that the charge so read has been duly filed in the clerk's office the fact that it was retained by the trial court for some time prior thereto is not necessarily error requiring reversal.
(b) It is not required that the trial court copy into the charge so written the Code sections read to the jury verbatim, but they should be identified therein without possibility of dispute.
2. Where illegal evidence is volunteered by a witness and promptly ruled out by the court, it is ordinarily not an abuse of discretion to refuse a mistrial.
3. A written request to charge which is not in proper form need not be given by the trial court.
4. (a) Failure to charge the jury that it is for their determination as to whether the statement of the defendant amounts to a confession and, if so, what credit and weight are to be given it do not, in the absence of request to so charge, require the grant of a new trial.
(b) Where a witness testifies that the confession was freely and voluntarily made, and no objection is made to such testimony on the ground that it is a conclusion, it is presumed that such ground of objection has been waived. See Lemon v. State, 80 Ga. App. 854 (57 S. E. 2d, 626).
5. Failure to charge the law relating to circumstantial evidence is not error in the absence of request where the conviction is not dependent upon circumstantial evidence alone.
6. "One who has in his possession more than a quart of non-tax-paid whisky, in a county where whisky cannot legally be sold, is not, as a matter of law, guilty of violating both sections of the act of 1938, codified as 58-1056 and 58-1077 in the Annotated Code Supplement. To violate the former section, he must have in his possession whisky on which the tax has not been paid; and the latter section, by having in his possession, in a dry county, more than a quart of whisky on which the tax has been paid." Pierce v. State, 200 Ga. 384, 357 (37 S. E. 2d, 201). Possessing more than one quart of non-tax-paid whisky in a dry county is not a violation of this act. The conviction of the defendant based thereon, in case No. 33222, is therefore contrary to law.
The defendant in these cases, D. D. Fitzgerald, was charged with possessing alcoholiC liquor upon which the State tax had not been paid (Case No. 33221) and with possession of more than one quart of spirituous liquor in Lee County, a dry county, in violation of the Revenue Tax Act of 1938 (Case No. 33222), both on September 20, 1949. Although the defendant was tried by separate juries on these two accusations, the brief of evidence in each case discloses that both accusations grew out of the same transaction. The cases are therefore considered together. The briefs of evidence are of sufficient similarity to warrant the findings of fact to be treated together, and the evidence as disclosed by the brief of evidence in each case authorized each jury to find facts substantially as follows: that the defendant was driving a Ford car on the night of September 20 between Smithville and Leslie, Georgia; that one B. J. Atkins was seated in the front seat with him and another man in the rear seat; that the patrol car endeavored to stop the Ford by means of its spotlight and siren; that the defendant speeded up and began traveling between sixty-five and seventy miles per hour; that one of the officers fired several shots at the car tires but was unable to stop the car; that the officers in the patrol car then changed seats and, after again catching up with the Ford, the other officer fired, hitting one of the tires; that the car then stopped; that during the chase a five-gallon jug and several one-gallon jugs of whisky were thrown out of the car; that some of the whisky hit the windshield of the pursuing car and a quantity of it was found along the road together with the broken containers; that none of these containers had affixed thereon tax stamps; that one of the patrolmen said to the defendant after arresting him, "You're not supposed to be hauling whisky are you?"'to which he replied that he got in a tight and needed some extra money; that this statement was voluntarily made withour fear or hope of reward; that another witness for the State talked to the defendant and asked him whose whisky it was, and that the defendant said it was his. The defendant's companion,
B. J. Atkins, testifying in his behalf, stated that he and the other occupant of the car owned the whisky; that they ran out of gas and called the defendant's son-in-law to bring them some gasoline; that the defendant accompanied his son-in-law to the car and stated that he would drive with the other two men back to Cordele, and that the defendant had nothing to do with the whisky and did not know of its presence in the car. The defendant in his unsworn statement corroborated this testimony, adding that he found when he got there that both men had been drinking. As the testimony in these cases is substantially the same, they are here considered together. After conviction in each case the defendant filed his motions for a new trial, which were later amended, and after hearing the trial court overruled both motions. These judgments are assigned as error.
(After stating the foregoing facts.) 1. (a) Special grounds 3 and 7 of the respective amended motions complain that the court erred in failing to comply with Code 81-1103, which provides as follows: "The charge so written out and read shall be filed with the clerk of the court in which it was given, and shall be accessible to all persons interested in it," referring to requests that the judge wrote out his charge. The complaint is that the court held the charge as written and read from April 19, the day of the trial, until May 19, when he filed it with the clerk. A duplicate copy of the charge had promptly been mailed to counsel. In this contention they rely upon Ashley-Price Lumber Co. v. Henry, 23 Ga. App. 93 (98 S. E. 185), and Forrester v. Cocke, 6 Ga. App. 829 (65 S. E. 1063), and other cases holding that the charge must be filed as soon as delivered, and that the retention of it by the court, even overnight, is reversible error.
This statute was enacted by the legislature (Ga. Laws, 1860, p. 42) as it appears in our Code of 1933. The act of 1877 (Ga. Laws, 1877, p. 13) amended the statute by adding the words "as soon as delivered." This provision, as stated by Justice Bleckley, in Wheatley & Co. v. West, 61 Ga. 401, 408, stood "as a kind of constitutional law between the bench and the bar," referring to both Code 81-1102 and 81-1103. The words "as soon as delivered" were deleted from the 1933 Code, although they appeared in prior Codes during the time the decisions cited by the defendant were written. While it is presumed that the legislature, merely by adopting the Code of 1933, intended no change in the law ( Rogers v. Carmichael, 184 Ga. 496 (192 S. E. 39), nevertheless where an intention to change appears, and the change is so conspicuous as to demand the presumption that it must have been noticed by the lawmakers, such change must be given effect. See Maddox v. First National Bank of Jefferson, 191 Ga. 106 (11 S. E. 2d, 662). Further, since the adoption of the Code of 1933, 81-1102 has been amended (Ga. L. 1943, p. 262) as follows: "Provided, however, the provisions of this section shall not apply when there is an official stenographer or reporter of the court in attendance thereon, and he, the official court reporter, takes down in shorthand and writes out the full charge of the trial judge in said case upon the direction of the court." As nearly every court in this State now has available to it the services of a court reporter, it becomes obvious that the purpose for which these Code sections were intended--to prevent disputes between bench and bar--is deemed by the legislature to be met where the charge is not in fact written by the court at all but merely transcribed by the reporter. In view of this, the Code sections no longer fulfill the purpose Judge Bleckley envisioned for them of a kind of constitutional law between bench and bar, but merely serve as a medium for making certain that the charge as spoken will, at some future time, be reduced to the printed word. In view of these legislative changes, the decision in Ashley-Price Lumber Co. v. Henry, supra, is no longer controlling, and the fact that the trial court did not file the charge with the clerk immediately after reading the same does not constitute reversible error.
State, 89 Ga. 527 (15 S. E. 748). The written charge contains the words, "Here the court read the Code section under which the defendant was accused." Examination of the accusation, which is a part of the record, reveals that it is drawn up under the "Revenue Tax Act to Legalize and Control Alcoholic Beverages and Liquors" approved February 3, 1938, and the provisions of which appear as Code (Ann. Supp.), 58-1077. Where what the court actually read to the jury may be ascertained from the record in the case without any possibility of dispute, the error in not placing it in the charge as written is not reversible. See Whitaker v. State, 11 Ga. App. 208 (8) (75 S. E. 258). Therefore, while the better practice is to identify the Code section read by its number, the error in not doing so here is not a ground for a new trial, the Code section under which the defendant was accused being positively identified by reference to the accusation.
2. Special ground 1 (Case No. 33222) contends that the court erred in not granting a motion for a mistrial based on the following testimony of a witness for the State, as recited therein: "I had a report that Fitzgerald was hauling whisky in a car of the same description."
3. Special ground 4 (Case No. 33222) complains of error in refusing to give the following charge to the jury upon timely written request: "I charge you, gentlemen of the jury, that where two or more people are in an automobile and whisky is found therein, that one or two people claim that whisky to the exclusion of the other, then the burden is shifted to the State to show such circumstances or facts as would connect the other party with the possession of said whisky." A written request to charge on an issue of the case must be apt and, indeed, almost perfect; where it is not wholly correct in stating the law, it must be refused. See United Motor Freight Terminal Co. v. Hixon, 78 Ga. App. 638 (51 S. E. 2d, 679); Loeb v. State, 6 Ga. App. 23 (64 S. E. 338). The burden of proving the defendant in a criminal case guilty as charged is upon the State at the commencement of the trial, and remains there until the moment of his conviction. See Lipham v. State, 68 Ga. App. 174, 178 (22 S. E. 2d, 532). Thus, it cannot be said that the burden "shifts" to the State to prove the material issue of the defendant's guilt. The charge as requested was in apt in this respect, and its refusal was not error. The defendant, however, had a right to have this contention, upon which his entire defense rested, and which was supported by evidence, called to the attention of the jury, and a proper charge on this subject should have been included.
App. 561 (4) (77 S. E. 878). In the absence of request, the failure to specifically instruct the jury that it is for them to say what weight should be given the confession is not cause for a new trial. See Williams v. State, 196 Ga. 503 (2) (26 S. E. 2d, 926). Two witnesses testified that the confessions were made freely and voluntarily, without fear or hope of reward. No objection was made to this testimony; consequently, it must be presumed that any objection to the method of procuring the confession or laying a foundation for its admission in evidence was waived, there being no evidence that the confession was not in fact freely and voluntarily made. See Lemon v. State, 80 Ga. App. 854, 857 (supra). This ground of the amended motion is likewise without merit.
5. It is contended by special ground 4 of the amended motion for a new trial in Case No. 33221 that the court erred in failing to charge the principle of law as to circumstantial evidence, contending that the case is based upon circumstantial evidence alone. As seen from the statement of facts, however, there was direct evidence connecting the accused with the crime of possessing whisky. Further, there was no request to charge on this subject and, where the conviction is not dependent upon circumstantial evidence alone, a failure to so charge, in the absence of request, is not error. Wallace v. State, 43 Ga. App. 785 (159 S. E. 905); Wyatt v. State, 50 Ga. App. 266 (1) (177 S. E. 840); Roberts v. State, 50 Ga. App. 307 (1) (177 S. E. 825).
The general grounds of the motion for a new trial as to Case No. 33221 (possessing whisky upon which the State tax had not been paid) are without merit, since the evidence authorized the verdict and has the approval of the trial court. As to Case No. 33222 (possessing more than one quart of "spirituous liquors" as defined by the Act of the General Assembly of Georgia approved on the third day of February, 1938, and known as the Revenue Tax Act to Legalize and Control Alcoholic Beverages and Liquors), the evidence authorizes a finding that the defendant possessed more than one quart of whisky in Lee County, which is a county where whisky cannot legally be sold. The evidence demands a finding that the whisky under consideration was non-tax-paid. The accusation is based on that part of the statute approved February 3, 1938, known as the Revenue Tax Act to Legalize and Control Alcoholic Beverages and Liquors, codified in the Annotated Supplement of the Code as 58-1077. The possession of more than one quart of non-tax-paid whisky in a county where whisky cannot legally be sold is not a violation of this provision of the law. See Pierce v. State, 200 Ga. 384 (37 S. E. 2d, 201), and the same case in 73 Ga. App. 627 (37 S. E. 2d, 431), in which at page 630, quoting from Pierce v. State, supra (the Supreme Court case) it is held as follows: "The 'possession or control of more than one quart of spirituous, vinous, or alcoholic liquor, in any county of the State (except such counties in which liquor may be legally sold or transported under the terms of this act)' clearly has reference to the possession of more than a quart of tax-paid whisky in a dry county. To construe the words otherwise would necessarily imply that the possession of more than a quart of non-tax-paid whisky, in a county in which liquor may be sold, is legal." These two cases settled the law on this subject and hold in effect that where whisky on which the tax has not been paid is possessed in a dry county of this State, two offenses are committed. One is the violation of that part of the act of the General Assembly approved February 3, 1938 and codified in the cumulative pocket part of the Code Supplement as 58-1056, making it unlawful to possess any distilled spirits or alcoholic liquor which does not bear the tax stamps provided for elsewhere in this act, and the other is the violation of the "bone dry" law of the State of Georgia codified under 58-201 of the Code of 1933 making it unlawful to possess intoxicating liquors. The original "bone dry" law is held to be of full force and effect in every county of this State except where the same has been amended and modified, by the act approved February 3, 1938, to legalize and control alcoholic beverages and liquors.
Since the evidence in Case No. 33222 shows that the whisky possessed was non-tax-paid, and in a county where whisky cannot legally be sold, and since the accusation on which the prosecution proceeded shows that it was based on the Act of February 3, 1938, known as the Revenue Tax Act to Legalize and Control Alcoholic Beverages and Liquors (Code, 58-1077) and since it is held in Pierce v. State, 200 Ga. 384 (supra), that "the possession of more than a quart of non-tax-paid whisky, in a county where whisky cannot legally be sold, is not a violation" of this act, the evidence. does not support the verdict and the trial court erred in failing to grant a new trial as to Case No. 33222.
Judgment affirmed as to Case No. 33221, and reversed as to Case No. 33222. MacIntyre, P. J., and Gardner, J., concur,
G. Stuart Watson, Solicitor pro tem,, contra.
Fort & Fort, for plaintiff in error.
DECIDED OCTOBER 19, 1950.
Saturday May 23 05:55 EDT


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