18 Ga. App. 95 | Ga. Ct. App. | 1916
It is unnecessary to discuss the general grounds of the motion for a new trial, for two witnesses testified positively to purchasing whisky from the accused, within the jurisdiction of the court and at a time not barred by the statute of limitations.
1. The court permitted E. L. Bobertson to testify that he was the agent of the Southern Express Company at Marietta, and that, while he could not say positively how much whisky the defendant had got in the last two years, he judged that it was “somewhere between five hundred or eight hundred and a thousand gallons;” that the defendant “would get from three and four to eight and ten gallons a week, most every week; . . he got that much approximately.” Objection was made to this testimony, upon the ground that it was incompetent, immaterial, and irrelevant, and that there was better evidence, since the transactions testified about were matters of record; that the record was available, and that it was in the custody or control of the witness. We think the objection to the testimony was properly overruled. While the writer hardly thinks that the mere receipt of even unusually large quantities of intoxicating liquors prior to May 1, 1916, would authorize an inference so conclusive that the liquors were received for illegal purposes as that upon this one circumstance alone and without more proof one could be convicted of a violation of the prohibition law of 1907, still it is very plain that the receipt of intoxicating liquors in such unusual quantities as to
The motion to exclude the testimony referred to above was, as has been stated, based upon the ground that there ivas higher and better evidence, as well as upon the ground that the testimony was incompetent, upon which we have just ruled. The witness Eobertson, who was the agent of the express company, it is true, had testified that there was a record in his office of all of the deliveries of whisky made by him to the defendant, as well as a record of money orders which had been sold to the defendant by him as agent of the company. However, so far as the money orders are concerned, these did not operate to prove that any liquors were in fact delivered to the defendant in return for these orders. That there was in fact a delivery of whisky following the seller’s receipt of. the money order would be a mere matter of inference. As to the receipts given by the defendant as consignee of liquors actually shipped to him, and as to any other records kept by the agent of the express company, it could well have been insisted, as to the former, that the receipts were only prima facie evidence that the defendant had actually received the shipments therein referred to, and as to the latter that the defendant was not bound by entries upon the books of the company made by the company’s agent, perhaps in the absence of the defendant and certainly without authority from him. It is therefore evident to us that the trial judge correctly ruled that proof of actual manual delivery of a shipment to a consignee by one who asserted that he saw the delivery made, or who himself made the delivery, was primary proof of delivery. The testimony of a witness who as agent of a carrier actually knows that certain articles were delivered is not such secondary evidence of the delivery as to render
3. In the motion for a new trial it is complained that the accused was wrongfully deprived of the opening and conclusion of the argument. From an examination of the record it appears that his counsel and the presiding judge did not concur in their understanding of the reasons and purposes underlying the recalling and further examination of Mr. Robertson, a witness for the State; and the understanding of the judge must control. It appears, from the recital of facts, approved by the judge, that at the conclusion of the examination of this witness, and after he had left the stand and before he left the court-house, the defendant’s counsel requested the witness, in the presence of the court, not to leave the court-room, and stated that he desired to cross-examine him further. However, it does not appear that the discretion of the court was invoked for permission to cross-examine the witness further. When ample opportunity to examine a witness has been allowed, and the examination has been concluded, a party desiring to cross-examine him further must obtain the court’s permission to do so. For any reason which the judge in his discretion may adjudge to be sufficient, — such as that by oversight or lack of information some question material to a full cross-examination has been omitted, — a witness introduced by the opposite party may be recalled for further examination, and he still remains the witness of the party introducing him and who vouched
4. The ruling stated in the fourth headnote requires no elucidation.
5. It is alleged that the court erred in charging the jury as follows: “I have allowed evidence to go to you tending to show that the defendant had been ordering and receiving, about the time of the alleged offense, and shortly prior thereto, shipments of liquor. This is to be considered by you only as a circumstance illustrating the issue of the charge in this indictment of selling intoxicating liquor. The weight you will give this circumstance, if it is proven to your satisfaction, is a question for your determination. I charge you that he could not be convicted for that thing, and that you must be satisfied that he bartered and sold, for some valuable consideration, some quantity of intoxicating spirits in Cobb county within two years next preceding the return of this indictment, before he could be convicted. I further caution you that you should not allow any prejudice to arise in your minds against him on account of this evidence, but merely use it as a circumstance going to illustrate the issue raised by the charges .in the indictment, and the defendant’s denial.” In our opinion ‘this instruction should be commended for its fairness to the accused. In any event it is not subject to exception upon the ground set forth in the assignment of error, to wit, that the charge was based upon illegal testimony. For the reasons stated in the-first division of this opinion, the testimony referred to was competent, and the instruction here quoted is in line with our ruling.
6. Beginning with the decision of this court in Fields v. State, 2 Ga. App. 41 (4) (58 S. E. 327), this court has consistently held,
7. The evidence amply authorized the conviction of the accused, and there was no error in overruling the motion for a new trial.
Judgment affirmed.