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Violating liquor law. Before Judge Strickland. Jenkins City Court. March 14, 1955.
1. The failure of the trial court, in the absence of timely written request, to charge the jury the provisions of Code 38-109 relating to circumstantial evidence is not error requiring a reversal, the State not relying solely on circumstantial evidence for conviction.
2. The two remaining grounds of the amended motion for new trial are not passed upon, since one lacks the approval of the trial court and the other is insufficient to present a question for decision by this court.
Brantley Wiggins was tried and convicted in the City Court of Jenkins County on an accusation charging him with the possession of non-tax-paid liquor. The evidence showed in substance that certain officers were watching the premises of the defendant at about dusk of the day in question; that they saw the defendant's mother leave his house and go to her home on an adjoining lot about 30 or 40 feet away; that the defendant then carried a bucket from his house to his mother's house and set it on a sink, where it was in view of the officers through the window. At least one officer testified that he kept this bucket in constant view until they entered the house and examined it, that no one came near it, and that when seized it was found to contain moonshine liquor. The defendant returned to his house, and officers knocked on his door, which was locked. It took the defendant about 5 minutes to come to the door. During this time other officers, watching through the window, saw him emptying liquid from fruit jars into a commode, and these fruit jars, when seized, contained the odor of liquor and about a tablespoon of moonshine whisky.
The defendant filed a motion for new trial on the general grounds, which was subsequently amended by the addition of three special grounds. One of the special grounds, having been disapproved by the trial court, is not here considered. The denial of the motion as amended is assigned as error.
1. The first special ground of the amended motion for new trial, assigning error on the failure of the court to charge on circumstantial evidence, is considered in connection with the general grounds. Ordinarily, whisky found in old containers on the premises of a person charged with possessing whisky would not be sufficient to support a verdict of guilty where the quantity in the containers is of such infinitesimal amount as to indicate lack of knowledge of its presence on the part of the defendant on the one hand, and on the other hand to indicate his intention only to possess the container for some lawful and legitimate purpose rather than to possess the contents thereof. However, a defendant would not be entitled to the benefit of the inference where he was seen emptying a liquid from a container into a commode in an apparent effort to conceal the presence of the contents, and where the conclusion is warranted that the amount left in the jars is a part of a larger amount of the same liquor poured out by him in an effort at concealment. Evidence that the defendant or a member of his household is seen destroying illegal liquor in his home is direct evidence of the defendant's guilt of the offense charged. Scott v. State, 57 Ga. App. 489 (195 S. E. 923). In the same manner, testimony that the defendant removed from his home a bucket containing illegal liquor and placed it in the house of another is direct evidence of the defendant's guilt where, as here, the bucket was, according to the testimony, under constant supervision and no person approached it between the time the defendant placed it on the sink and the time it was apprehended and found to contain the liquor. Where, on the other hand, the unknown object, later found to contain the incriminating material, is not under constant watch between the time the defendant is seen with it and the time it is apprehended, the possibility that another person could have tampered with it in the meantime is not removed and the evidence of guilt is not direct but circumstantial, the inference of guilt being based on the facts that (a) the defendant was seen with it at one time, and (b) at another time it was found to contain the illegal matter. See Hunter v. State, 91 Ga. App. 136 (85 S. E. 2d 90). There being some direct evidence in this case, so that the verdict does not depend solely upon circumstantial evidence, the failure of the court to charge on circumstantial evidence did not constitute reversible error, no timely written request having been made. Sheffield v. State, 188 Ga. 1 (11) (2 S. E. 2d 657). The first special ground and the general grounds of the motion for new trial are without merit.
2. Special ground 2, which assigns error on the improper conduct of one of the jurors in becoming segregated from the other jurors during a recess in the trial is too imperfect for consideration by this court. Although it would seem that supporting affidavits as to the credibility and means of knowledge of the witness upon whose affidavit the motion is based need not be attached in cases of this kind (see Cray v. State, 37 Ga. App. 371, 140 S. E. 402), nevertheless, it is necessary that there be affidavits of the defendant and his counsel that they did not have knowledge of this fact prior to the rendition of the verdict in the case. Barrow v. State, 80 Ga. 191 (1) (5 S. E. 64); Holder v. Farmers &c. Bank of Stillmore, 30 Ga. App. 400 (5) (118 S. E. 467).
The trial court did not err in denying the motion for a new trial.
Judgment affirmed. Gardner, P. J., and Carlisle, J., concur.
Thomas M. Odom, Solicitor, contra.
L. B. Kent, for plaintiff in error.
DECIDED MAY 20, 1955.
Saturday May 23 03:18 EDT

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