10 Ga. App. 149 | Ga. Ct. App. | 1911
Grusin was convicted under an accusation charging him with having violated the prohibition law by selling intoxicating liquors, and by keeping such liquors on hand at his place of business. He excepts to the refusal of a new trial.
As to the general grounds of the motion for a new trial it is sufficient to say, that there was proof that on the day alleged in the accusation, a policeman, who searched the grocery store and adjoining “ near beer ” saloon of the accused, found in both places a large quantity of whisky in bottles, — enough to make a wagon-load, and that the accused begged him not take it all, but. to take “just enough to make out a good case;” and that others testified to both the keeping and the frequent selling of intoxicating liquors by the accused at his place of business.
The next ground of the motion for a new trial is that the court refused the defendant a continuance upon the following showing: The defendant testified, that he was arrested and was required to sign two appearance bonds, — one for his appearance before the recorder of the city of Augusta on the charge of violating the city ordinance as to keeping liquor on hand for illegal sale, the other for his appearance at'the city court on the charge of violating the State prohibition law; that he understood that his trial before the recorder was for the purpose of determining not only as to violation of the city ordinance, but also as to, whether there was sufficient evidence to bind him over to the city court, the recorder being also a committing officer; that the trial before the recorder resulted in his dismissal, and he was under the impression that this dismissal carried with it a dismissal of the State charge; that at the March term of the city court, at which the motion for a continuance was made, he looked over a list of the cases assigned for that term, published in one of the daily newspapers of the city, and his case was not listed there; that he was notified the day before the trial that his case would come up about 3 o’clock in the afternoon, and he immediately employed counsel to defend him; that “there was a witness, Annie Spires, in Columbia county, Georgia, who was present on the Sunday that John Bird contended that
There was no abuse of discretion in refusing a continuance on. this state of facts. “The party making an application for a continuance must show that he has used due diligence.” Penal Code (1910), § 991. It can hardly be seriously contended that this defendant used due diligence, when, instead of regarding the requirement of his appearance bond and making due inquiry as to his case in the State court, he assumed that he was relieved from any further duty in the matter by the dismissal of a different charge against him in a municipal court and by the fact that the recorder did not bind him over upon a charge which he had already given bond to answer in the State court, or that he was entitled to rely upon a newspaper report which did not mention his case in giving a list of cases assigned for trial; especially when “his bondsman had called up his place and stated that said case would be tried on the 14th of April,” which date was six days before the date of the trial, “and told his clerk, who notified defendant.” It was his own fault if his counsel did not have sufficient time to prepare his defense. Moreover, it appears that after the employment of counsel, there was 'a part of a day, a night, and un
It is complained that the court erred in admitting testimony of Britt, a police officer, as follows: '“ G-us Hughes and Felix Apperson brought that whisky to me at the police headquarters. I )have tasted pretty near all kinds of gin, and it is intoxicating. I gave Gus Hughes $1 to see if he could buy some whisky. He remained away probably three quarters of an hour or an hour, when he returned and brought me that bottle of whisky and another bottle half full.” The sole objection made to this testimony was that “any sayings had out of the presence of the defendant would not be binding upon the defendant, and were hearsay.” This testimony, however, does not give any sayings; and it was clearly admissible in connection with the testimony of Gus Hughes as to his having delivered to this witness whisky which he had bought from the defendant with $1 which had been given to him by the witness for that purpose.
The allowance of a leading question, as to which complaint is made in the 6th ground of the motion for a new trial, was a matter within the discretion of the trial judge.
John Bird testified to a sale of whisky by the defendant to one Stetson on “the 20th of last February.” This testimony was objected to (1) because it was not offered until after the State had made out its main case and rested, and the defendant had put in his evidence, and it was not in rebuttal, but related to a separate criminal transaction from the one made out in the main case;
There is no merit in the contention that the statute forbidding the expression or intimation of an opinion by the court as to the facts, in charging the jury, was violated by the statement, “That makes the crime complete,” etc., in the following instruction: “If you find that he carried on any mercantile business or carried on a ‘near beer’ establishment, and that he had prohibited liquors at his ‘ near beer ’ saloon, then he would be guilty of violating the law, even if there is no evidence of a sale or giving away. That makes the crime complete — having it at his place of business.”
Beading in connection with its immediate context the extract from the instructions of the court on the effect of evidence of good character, it is not subject to the objection made in the motion for a new trial. Besides, there was no evidence on which to base a charge on this subject.
There is no other ground requiring a new trial.
Judgment affirmed.