15 Ga. App. 623 | Ga. Ct. App. | 1915
The plaintiff in error was convicted of a violation of the prohibition law, and excepts to the judgment overruling his motion for a new trial. In addition to the usual general grounds, the motion is based upon a large number of special assignments of error. The last two grounds relate to the court’s inquiry, in the hearing of the jury, as to whether counsel objected to the jury’s dispersing, and to the action of the court in subsequently refusing to declare a mistrial. If the court should have declared a mistrial, naturally all the other proceedings of the trial were .nugatory; and for this reason we shall consider the assign- ' ments of error in inverse order.
However, we need not rule as to whether the judge’s inquiry was prejudicial in the present case, for it is clear to our minds that the defendant, by consenting to the dispersal of the jury instead of promptly moving at that time for a mistrial, waived any objections he might have had to the irregularity. See Heavner v. Saeger, 79
2. In the 14th ground of the motion for a new trial it is insisted that the court erred in charging the jury as follows: “But even if he did not sell any and the evidence does not authorize" you to find he did sell any of these liquors, why then, if he is guilty of the offense of keeping at his place of business any of these liquors prohibited by law, why then he is guilty, and you would be authorized to find him guilty.” It is insisted that this instruction was erroneous for the reason there was no proof that the defendant ever kept alcoholic liquors at his place of business, and there was no evidence authorizing a charge upon that subject. The judge did not confine his instructions to “alcoholic liquors,” but designated the fluids referred to as “any of these liquors prohibited by law.” There was evidence that the defendant had, within the statutory period, kept on hand lager beer, as well as numerous beers whose trade names are not the subject of judicial cognizance and may not be known to be intoxicating. In the practical operation of the prohibition law, beer, or so called “near beer,” assumes many
3, 4. In several assignments of error it is contended that the court erred in. confining the jury, in their deliberations on the question of guilt or innocence of the defendant, to a consideration of the evidence only, and shut off entirely from consideration the defendant’s statement to the court and jury, in arriving at a conclusion in the case. A review of the various excerpts to which exceptions are taken, in connection with the charge of the court as a whole, shows that these exceptions are without merit. It is true that the court told the jury that they were to determine the guilt or innocence of the accused by a consideration of the evidence, and did not couple the defendant’s statement with this reference to the evidence; and also told them that it was for them to say whether, under the law as given in charge and “the evidence in the case,” they were satisfied to a reasonable and moral certainty and beyond a reasonable doubt of the defendant’s guilt,—again omitting mention of the defendant’s statement. The court charged also: “Now, you take all the evidence in this case, for the purpose of finding out and coming to a conclusion as to whether or not this defendant is guilty either of selling or keeping at his place of business.” This instruction is attacked on the ground that the court failed to re
5. While complaining on the one hand that the judge, in referring to the evidence, did not reiterate the reference to the defendant’s statement, the defendant nevertheless complains that, after having charged, “As to the question of his being guilty upon either one of the theories about which I have charged you, you look to all the evidence and all the circumstances in the case, all the evidence for and against,” the judge erred in adding, “and in this connection you have the right to consider the defendant’s statement.” Immediately following this instruction, which was apparently intended merely as a prelude to what followed, the court gave in charge to the jury, in effect, the provisions .of section 1036 of the Penal Codé of 1910. The instruction complained of was not error, either for the reason that it deprived the jury of the right to consider the statement apart from the evidence, or that it tended to depreciate the statement of the accused, as is insisted. Manifestly it is the duty of the jury to consider the evidence, and the statement must be considered in comparison with the evidence. The statement may so contradict the evidence that if the jury (as is their right) give preference to the statement, the testimony will be ob
6. In the absence of an appropriate and timely written request for additional instructions, the charge of the court upon the subject of reasonable doubt was not erroneous for any of-the reasons assigned. Upon this subject the court charged: “Now a reasonable doubt is not a mere conjecture, not a mere fancy, but it is a doubt that grows out of the consideration of the evidence in the case.” It is insisted that the latter sentence of this charge instructed the jury that a reasonable doubt could only arise from a consideration of the evidence, whereas under the law a reasonable doubt may arise from the evidence, or from the evidence and the defendant’s statement, or from the lack of evidence, or from the defendant’s statement; and further it is contended that this instruction was error because it limited the origin of a reasonable doubt to the evidence, whereas such a doubt may arise from the defendant’s statement disassociated from the evidence. The instruction of which complaint is made was immediately followed by the following instruction, of which it was a part: “It is your duty to take all the evidence in the case and consider it with care, without prejudice or bias for or against the defendant, and, after you have done that, say whether or not there is in your minds a doubt, a reasonable doubt growing out of a reasonable consideration of the evidence in the ease, either on account of the want of evidence or the insufficiency of evidence, or on account of the nature of the’ evidence itself.” From this it appears that the contention of the plaintiff in error merely resolves itself into a complaint that the court, in instructing as to a reasonable doubt, did not specifically refer to the defendant’s statement. We have heretofore ruled upon this point, but it may be added that since the judge told the
7. Error is assigned upon the admission of a number of bills of lading in which the defendant was the consignee, and of a number of warehouse receipts purporting to have been signed by the defendant. It is insisted that the bills of lading were irrelevant, and that there was no proof that they were correct, and that they are declarations of third persons not under oath, mere hearsay, and not.binding on the defendant; and the warehouse receipts were objected to upon the same ground. It appears from the record that the bills of lading were presented by the defendant, and upon their presentation he was given an order on the Southern Eailway Warehouse in Macon for what purported to be whisky, and the several shipments were delivered in his presence, and the receipts for the shipments were signed by him. The bills of lading recited that they were for shipments of whisky; and the warehouse receipts recited that the packages receipted for contained whisky. The defendant, by endorsing the bills of lading and signing receipts for the packages, admitted that the packages contained whisky. This court has more than once held that receipt of shipments of unusual quantities of liquor is a circumstance of more or less probative value for the consideration of the jury; and we find no error in the admission of the papers to which objection is made.
8. It was contended that the evidence was not sufficient to authorize the conviction of the accused of selling intoxicating liquors, and that the State affirmatively proved that the party making the sale was not the agent nor in the employ of the defendant, for the reason that a witness introduced by the State swore that he was the only clerk employed by the defendant, and that he did not make the alleged sale. It was argued that the inevitable conclusion was that the man who sold the whisky was an 'outsider who happened to be in the store of the accused at the time, and made the sale there for himself or for some undisclosed principal occupying some nearby building. The jury were not bound to credit all or any of the testimony of the witness referred to, and the State was not so bound