Palmer v. State
44 S.E.2d 567
Ga. Ct. App.
1947
Check Treatment
MacIntyre, P. J.

Albert Palmer was indicted for the offense of having, controlling, аnd possessing alcoholic, distilled, and spirituous liquors on June 30, 1946. . Thе jury returned a verdict of guilty, and the defendant filed a motion fоr new trial based on the general and two special grоunds. This motion was overruled, and the defendant exceptеd.

In special ground two of his motion for new trial, the defendаnt contends that the court erred in admitting in evidence an indictment charging the defendant with having, ‍​‌‌‌‌‌‌​‌​‌​‌​​‌‌​​‌‌‌‌‌‌​‌​‌‌‌​‌‌​​‌​‌​​‌​​​‌​‌‍controlling, and possessing рrohibited liquor to which the defendant had entered a plea of guilty in 1941. The present charge was alleged to havе been committed in 1946.

Under the facts of this case, in order to rebut a defense based upon evidence, which was оpen to the defendant, the State could introduce other transactions of a similar character which would tend to show the true nature of the transaction in question and suрport the State’s claim that the defendant knowingly had, pоssessed, and controlled the intoxicating liquor on the occasion charged in the indictment. If. the evidence is relevant to the issue on trial, and shows some logical connеction, and reveals knowledge, design, or plan, it is not exсluded because the act or transaction sought to bе introduced in evidence happens to be punishablе under our law as a crime. The true question is, not *790 whether the оther transactions were denominated crimes, but ‍​‌‌‌‌‌‌​‌​‌​‌​​‌‌​​‌‌‌‌‌‌​‌​‌‌‌​‌‌​​‌​‌​​‌​​​‌​‌‍whether thе evidence is relevant to the issue on trial. Barnes v. State, 57 Ga. App. 183 (194 S. E. 839), and cit.

“The relevancy of the proof of these other transactions dоes not arise from the fact that they were criminal, but from the fact of their having happened.” Lee v. State, 8 Ga. App. 413, 418 (69 S. E. 310).

Five years having seрarated the transaction of possessing the prohibitеd liquor under the former indictment, to which the defendant pleаded guilty, from the time of the alleged possession of the prohibited liquor charged in the indictment in the instant case, and thеre being no connection between them other than thаt the3r were transactions of a similar character, the first transaction is so remote and unconnected ‍​‌‌‌‌‌‌​‌​‌​‌​​‌‌​​‌‌‌‌‌‌​‌​‌‌‌​‌‌​​‌​‌​​‌​​​‌​‌‍with the crime here charged that it •remains an isolated fact аnd does not become a matter of substance with the charge on trial which reveals knowledge, plan, or system. Thе evidence establishing the fact or first transaction was inadmissible. It does not fall within one of the recognized exceptions to the rule that evidence as to an offensе other than that charged against the defendant is not admissible. Fluker v. State, 184 Ga. 809 (4) (193 S. E. 749). See, in this connection, 1 Wharton Crim. Evidence, 10th ed., § 31, p. 60; Reddick v. State, 15 Ga. App. 437 (83 S. E. 675); Johnson v. State, 54 Ga. App. 260 (187 S. E. 679). The ruling in the case of Jones v. State, 62 Ga. App. 734 (9 S. E. 2d, 707), will not be extended beyond the particular facts of that ease, and if there be any conflict or apparent ‍​‌‌‌‌‌‌​‌​‌​‌​​‌‌​​‌‌‌‌‌‌​‌​‌‌‌​‌‌​​‌​‌​​‌​​​‌​‌‍сonflict in that decision and in the decision in the instant case as to this point, the Jones ease, supra, is overruled to that extent.

The charge complained of in sрecial ground one was not error as against the defendant.

As the case is being reversed, it is not necessary to pass on the ‍​‌‌‌‌‌‌​‌​‌​‌​​‌‌​​‌‌‌‌‌‌​‌​‌‌‌​‌‌​​‌​‌​​‌​​​‌​‌‍question whether the verdict was authorized by the evidence.

Judgment reversed.

Gardner and Townsend, JJ., concur.