100 Ga. App. 643 | Ga. Ct. App. | 1959
1. Circumstantial evidence is that which only tends to establish the issue by proof of various facts, sustaining by their consistency the hypothesis claimed. Code § 38-102. In criminal cases, in order to sustain conviction, it shall be such as to' exclude every other reasonable hypothesis save that of the guilt of the accused. Code § 38-109. “It is not necessary ... in order to sustain a verdict of conviction, that the evidence exclude every possibility or every inference that may be drawn from the proved facts, but only necessary to exclude reasonable inferences and reasonable hypotheses. Wrisper v. State, 193 Ga. 157, 164 (17 S. E. 2d 714).” Dunson v. State, 202 Ga. 515, 521 (43 S. E. 2d 504). A mere possibility within the bounds of remote conjecture is not sufficient to invalidate the verdict.
2. The evidence in this case is undisputed that certain law enforcement officers, armed with a search warrant, searched the defendant’s home; that they removed an electrical socket from the wall and behind it saw the tops of three pipes; that they pumped air down one of the pipes and 42 gallons of whisky were thereby ejected from the other pipes; that the pipes were embedded in the wall and appeared to lead down under a concrete floor where presumably there was a storage container holding the liquor which was recovered by the officers; that they did not investigate the storage container because to do so would have involved destroying the walls and floor as well as the concrete subfloor of the house. They were accordingly unable to swear from their own investigation that there actually existed a storage container under the concrete which had tax stamps affixed thereon, or which did not have tax stamps affixed thereon. The general grounds, as well as special grounds 1, 2 and 3 of the amended motion for new trial, are directed to the point that the verdict is not sustainable because there is no proof that such container did not have tax stamps, the accusation alleging that the defendant was guilty of possessing whisky not having such stamps affixed to the bottle and container thereof. We agree that it is incumbent upon the State to prove every material allegation of the accusation. We agree that a statement that a fact exists, not founded on direct evidence, where the known
3. It was not cause for a mistrial that the counsel for the State, in his argument to the jury, referred to “the defendant and these bootleggers.” The context of the statement is not shown in the motion or in the fourth special ground assigning error on the court’s failure to grant a mistrial. We cannot tell from examination of it what bootleggers were referred to, although we might conclude that the solicitor had sought to contend that the defendant’s equipment warranted a conclusion that he consorted or otherwise trafficked with bootleggers. “Counsel are allowed the largest liberty in the argument of cases
4. Special ground 5 assigns error on an excerpt from the charge as follows: “The jury is not responsible for the consequences of its verdict. The jury is responsible for the truth of its verdict” on the grounds that it was misleading, confusing, argumentative, and in effect held that the jury would be accountable unless it came up with a true verdict. The word verdict, as is frequently pointed out, means “to speak the truth”, this being the responsibility that every member of that body has sworn to fulfill. The consequences of the verdict, so far as the defendant is concerned, are incorporated in the judgment or sentence of the court, and with this the jury is not concerned. The statement was in no wise improper for any reason assigned.
The trial court did not err in denying the motion for new trial as amended.
Judgment affirmed.