116 Ga. 90 | Ga. | 1902
1. The indictment charged H. G. Hopson with selling spirituous and intoxicating liquors in Brooks county. There was sufficient evidence to establish, among others, the following facts: Gornto and J. W. Hopson, as partners, were engaged in selling such liquors at Valdosta, in the county of Lowndes, and the latter had a store in Brooks county in which H. G. Hopson was employed as a clerk. Several persons residing in Brooks county sent by mail orders to Gornto for whisky, in each instance enclosing with the order a remittance covering the price of the liquor desired. These orders were filled by expressing the liquors to J. W. Hopson, who informed the purchasers of the arrival thereof, and they called upon and received the same from H. G. Hopson. The name of each purchaser was upon every express package designed for him, but the shipments were, as stated, made to J. W. Hopson. A regular and systematic business, the nature of which was fully understood by H. G. Hopson, was conducted on the plan indicated above.
1. It is plain that none of the sales were completed'in Lowndes county ; for in no instance was there in that county a delivery of the liquor to the purchaser. Had the shipments been made directly to the purchasers, the case would have been different; for delivery to the carrier would have been, in legal contemplation,
2. We are, however, constrained to order a new trial upon another ground of the motion, which complains that, after the court had charged the jury and they had considered the case for some hours, the judge, in the absence of the accused and his counsel, and without any effort to bring them into court, gave to the jury a second charge which was substantially the same as that which had been given before they retired in the first instance. This practice can not be upheld. See Wade v. State, 12 Ga. 25; Martin v. State, 51 Ga. 567; Bonner v. State, 67 Ga. 510; Wilson v. State, 87 Ga. 583; Tiller v. State, 96 Ga. 430. There was no waiver of the right of the accused and his counsel to be present when the second charge was given. It does not appear that both were ignorant of its being given until after the trial had ended; but this makes no difference. It is an inevitable conclusion from the cases cited above that the accused may complain of such an irregularity after verdict, notwithstanding knowledge thereof by him or his counsel while the trial was in progress. Nor does the fact that the “recharge” was, in substance, the same as the original charge dispense with the necessity for ordering a new trial. The great point is that the accused and his counsel have the right to be present at every stage of the proceedings and personally see
Judgment reversed.
