59 Ga. App. 563 | Ga. Ct. App. | 1939
Lead Opinion
The defendant was convicted of possessing whisky. The accusation charged that the offense was committed on August 29, 1937. The accusation was founded on an affidavit executed on August 31, 1937, and the accusation bore the same date. The special grounds of the motion for new trial complain of the admission of evidence showing that on two separate occasions, about six months subsequent to the filing of the accusation, whisky was found in the defendant’s place of business. Under the facts of the case the evidence was properly admitted. Other evidence in the case showed that on two other occasions, within the statute of limitations, ánd prior to the filing of the affidavit and the accusation, the defendant was found in the unlawful possession of whisky, and that the defendant’s place of business had the reputation of being a “bootlegging joint.” When the evidence complained of was objected to, the solicitor said: “Your Honor, I want to make the statement that I am offering this evidence for the purpose of showing the guilty knowledge of the defendant, motive and intent to violate the laws of this State.” And the court in admitting the evidence made the following statement: “Any raid within two years prior to the filing of this accusation would be admissible; anything after that time would be admissible to
Judgment affirmed.
Concurrence Opinion
concurring specially. The evidence tended to show that the defendant ran a dance hall called the “Big Apple.” One of the witnesses testified that the officers had found whisky there, one time in the closet, one time in a dresser, and one time in a little half-gallon jar. Another officer testified “We had quite a bit of trouble with the Big Apple. . . I had heard it was bad before I made this raid. We have had ten or twelve eases against him [the defendant] in the recorder’s court. I didn’t make any charges against him in the city court of Dublin.” The defendant in his statement said in part, “I know there is some whisky drinking there [referring to his place of business, the Big Apple]. I don’t dispute that, but I didn’t know who put the whisky out there.
Dissenting Opinion
dissenting. The defendant was tried under an accusation charging that he was in possession of certain alcoholic liquors on August 29, 1937. The accusation was filed August 31, 1937. The charge was general, and was sufficient to allow evidence of any transaction occurring two years prior to the filing of the •accusation. The State introduced evidence sufficient to sustain the accusation including the date named and other occasions prior to the date of the filing and within two years thereof. Over objection of defendant’s counsel, officers were permitted to testify that they found two half-gallons of whisky at defendant’s place of business in February, 1938. Error is assigned on the admission of this evidence in reference to the finding of this whisky five or six months after the filing of the accusation.
It may be stated that the general- rule is that proof of other crimes is inadmissible on the trial of one accused of crime. This rule should never be the subject of exception unless there is some* logical connection between the two transactions from which it may
The facts in the case of Cox v. State, 165 Ga. 145 (139 S. E. 861), are illustrative of the application of the rule. See also Williams v. State, 51 Ga. App. 319 (180 S. E. 369). We recognize that this court has said that “In a prosecution for possessing whisky it is not error to admit evidence that on other occasions, both before and after the date of the offense charged in the accusation, whisky was found in the place of business of the accused.” Jones v. State, 32 Ga. App. 7 (122 S. E. 738). Cole v. State, 120 Ga. 485 (supra), stated that evidence that the accused was found in possession of whisky on a day subsequent to that charged in the accusation was admissible. In neither of these or other cases so holding does it appear that such evidence was admitted where it appeared that the transaction occurred after the date of the filing of the accusation or the finding of the indictment. I think the testimony in such cases, where the transaction offered to be proved happened after the time charged in the accusation but before the filing, was admissible on another ground. Even though it be possible that evidence of other like criminal transactions which have occurred after the date of the filing of the accusation may be admitted in evidence in such a case, it must clearly appear that such other offenses are closely interwoven with the facts of the case on trial. This language is used by Judge Powell in the Lee case, supra. The accusation in that case was against a narcotic peddler. It may readily be seen that evidence that the accused, both before and after the transaction alleged, was accustomed to sell to whoever asked to buy, may be sufficient to show a general practice or course of conduct. I do not know that oven in that case that evidence of a sale six months after the filing of the indictment would have been admissible. The fact that whisky was found in the defendant’s place of business six months after the filing of the accusation is too remote to have evidential value in such a case of the offense charged, to wit: the possession of whisky six months prior thereto. In a murder charge evidence of another homicide by the defendant six months after the indictment would be inadmissible, unless there was something about the second homicide which would serve to connect it with the first offense, or show motive, intent,’ purpose,
The result of the majority opinion in this case is to make the exception to the general rule, the true rule, and to make what has heretofore been held to be the true rule the exception. I am unable to see how or why the fact that the defendant was in possession of two half-gallons of whisky in February, 1938, illustrates any motive or intent as to the possession of whisky charged in the accusation on August 29, 1937.