26 S.E.2d 374 | Ga. Ct. App. | 1943
Lead Opinion
1. In a criminal case, where pertinent under the evidence, it is not error for the court to give in charge to the jury the provisions of the Code, § 38-107, where the preponderance rule is not referred to, and where the court fully charges the principle that the defendant can not be convicted unless the jury believes him guilty beyond a reasonable doubt, under all the evidence and statement of defendant.
2. The evidence was sufficient to sustain the verdict.
1. Immediately preceding the portion of the charge to which exception is taken the court charged: "You are also made the exclusive judges of the credibility of the witnesses, that is, what weight and credit you should give to the testimony of each and every witness." Before charging on the credibility of the witnesses the court charged: "He enters upon the trial of the case presumed to be innocent, and this presumption remains with him throughout the trial of the case, and entitles him to an acquittal at your hands until and unless the state removes and overcomes that presumption of innocence by the introduction of evidence in you presence and hearing which convinces you of his guilt to a reasonable and moral certainty and beyond a reasonable doubt, and this reasonable doubt is just such a doubt for which you could give a reason for having, after having listened to the evidence as fairminded impartial jurors, and the statement of the defendant. So long as this doubt remains in your minds you should give the defendant the benefit of the doubt and acquit him, but if it does not longer exist, you ought to convict." Immediately following the charge of which complaint is made the court charged fully on circumstantial evidence. The court then charged on the law of alibi to the effect (a) that such defense need be established only to the satisfaction of the jury and not beyond a reasonable doubt; and (b) that the testimony introduced on the defense of alibi should be taken along with all the other evidence in the case in determining the guilt or the innocence of the defendant and if in considering all of the evidence and the defendant's statement the jury should entertain a reasonable doubt as to the guilt of the defendant, it was their duty to give him the benefit of that doubt and acquit him. It nowhere appears in the charge that the judge made any reference whatsoever to a preponderance of the testimony. On the contrary in several statements he impresses the jury with the principle of law that they should not convict the defendant unless they found him guilty beyond a reasonable doubt. In Thompson v. State,
Learned counsel, in arguing this ground as cause for a reversal, relied upon the decisions in Gale v. State,
2. The sale of intoxicating liquors has not been legalized in Floyd County. About the middle of an afternoon the deputy sheriff concealed himself behind a hedge near the home of the defendant's sister. The defendant came around a hog-pen, picked up a sack, and came from around and behind his sister's house to a patch of Johnson grass and to a thorn bush about seventy yards from where the officer was concealed. He took from the sack two pint bottles and placed them under the thorn bush. He then took from the sack four additional pint bottles containing a yellow substance. He placed two of these additional four pint bottles, one in each of his hip pockets, one in his right hand and one in his *576 left hand or in some pocket of his clothes. The defendant then went through his sister's house from the back to the front, and from the front he crossed the road to where a car was parked in front of his brother's house. He delivered two pint bottles to the occupants of the car, who drove away. The officer did not observe what disposition was made of the other two pint bottles which the defendant possessed when he left the thorn bush. After the defendant had delivered the two pint bottles to the occupants of the car the deputy sheriff went to the thorn bush and procured the two pint bottles, which the defendant had hidden there. The officer did not see the defendant any more until he arrested him a few hours later at his home about half a mile away. The defendant worked for his brother, but did not live with him. The officer testified that the two pint bottles which he seized from under the thorn bush contained whisky with the revenue stamps thereon, that the bottles were wrapped in fancy cellophane paper, and that at least some of the other four pint bottles were likewise wrapped. The State's evidence further showed that the father of the defendant picked up the sack from which the bottles were removed. The sheriff also arrested the father, John Carter.
The defendant in his statement denied that he placed the liquor under the thorn bush, or that he was at his sister's house at all during the day in question. The father testified for the defendant, contradicting the officer's testimony to the extent that the defendant was not there where the sheriff claimed to have seen him; and further testified: "I most certainly do mean to say Bunk was not around there when Mr. Davis saw me bring that sack full of liquor down there. If he was I did not see him. I don't know where he was. The only man I saw down there was Floyd Wheeler; he came out to the hog pen to see me doctor the hogs, and he carried the preparation that I didn't use on the hogs back to the house; he worked at Shannon; he works on the night shift; he does not work for Ira." Another witness testified that the defendant was not where the sheriff claimed to have seen him with the bottles. If the deputy sheriff was worthy of belief (and the jury by its verdict showed that they thought so), the evidence sustained the verdict. It is earnestly contended by counsel for the plaintiff in error that the State's evidence did not show, even if the deputy sheriff was credible, that the defendant possessed *577 more than one quart of whisky. This argument is based on the supposition that there is no evidence to sustain the position other than the two pint bottles found under the thorn bush containing whisky, and the defendant was entitled under the law to possess one quart. From all the circumstances of the case as shown by the evidence, we can not agree with this contention. The jury were authorized to apply the presumptive-evidence rule as set forth in the Code, § 38-102, as follows: "Presumptive evidence consists of inferences drawn by human experience from the connection of cause and effect, and observations of human conduct." When this rule is applied under the facts of this case, there can be no doubt that the evidence is sufficient to sustain the verdict. The court did not err in overruling the motion for a new trial.
Judgment affirmed. Broyles, C. J., concurs.
Concurrence Opinion
The Code, § 38-107, states a rule for determining in a civil case where the preponderance of the evidence lies. It does not refer to the rule in a criminal case as to the method for determining when an accused has been proved guilty beyond a reasonable doubt. In so far as a criminal case is concerned, this section should be eliminated from the consideration of the court. It has no application in a criminal case, and to attempt to apply it in a criminal case has only a tendency to confuse. It does not enlarge or restrict the judge's right to give to the jury, in his charge in a criminal case, suggestions and helpful rules not contradictory of the rules of law applicable to criminal cases, when he thinks these will aid the jury in properly determining the credibility of witnesses. We should undertake to apply only criminal rules of law to criminal cases. In the instant case the excerpt was not error for any reason assigned. Sconyers v.State,