51 Ga. App. 675 | Ga. Ct. App. | 1935
Lead Opinion
In the trial of a prosecution for possessing whisky it is not error to admit evidence that on other occasions, shortly before or shortly after the date of the offense charged in the accusation, whisky was found in the possession of the defendant. “Where knowledge, motive, intent, good or bad faith, and other matters dependent upon a person’s state of mind, are involved as a material element in a particular criminal offense for which a defendant is on trial, and the defendant has engaged in a course of conduct or done other acts at or about the same time the act in question was committed, and these other transactions are such as to illustrate the state of the defendant’s mind on the subject involved, proof of them may be received.” Lee v. State, 8 Ga. App. 413 (3) (69 S. E. 410). See Jones v. State, 32 Ga. App. 7 (122 S. E. 738); Martin v. State, 35 Ga. App. 575 (134 S. E. 185); Hayes v. State, 36 Ga. App. 668 (137 S. E. 860); Mays v. State, 47 Ga. App. 55 (169 S. E. 683), and cit. Under the foregoing ruling and the facts of the instant case, the court did not err in admitting evidence that the defendant, at other places and on other occasions shortly before the date of the offense charged in the accusation, was found in the possession of whisky.
The evidence for the State showed that when the policemen raided the defendant’s dwelling-house they found there whisky and two persons, Fannie Powell and the defendant; and that the defendant slipped out of the house and escaped before he could be arrested. After the State rested its case, the defense put up Fannie Powell, who testified that' when the policemen came into the house the defendant was not there and had not been there; that she and a man (not the defendant) were the only persons in the house; that she and this man lived there, and that the defendant did not. After the defense closed its testimony, the State reintroduced one of the policemen who testified, over the objections of the defendant, that when he found the whisky in the house Fannie Powell told him that she was there cooking for the defendant, and that the whisky belonged to him. Under the circumstances this evidence was ad
The other assignments of error in the petition for certiorari are without substantial merit. The evidence, while in sharp conflict, authorized the verdict. The judge did not err in overruling the certiorari.
Judgment affirmed,
Concurrence Opinion
MacIntyre, J.,
concurring specially. The accusation was not in general terms, and therefore the State was relying upon the particular charge in the accusation that the defendant “on the 30th day of November, 1933, did have, control, and possess spirituous and intoxicating liquor, to wit: 1 qt. of whisky in a bottle and two gallons of whisky in cans on Strong St.” The evidence was circumstantial as to whether the defendant resided at the house and as to whether he was the head of the house where the liquor was found. The circumstantial evidence was aided by the presumption that the house and all of the household effects belonged to the head of the house. There was a woman cooking in the house at the time the liquor was found. Both the defendant and the woman were colored persons. The following evidence was introduced as to whisky being found on the premises of defendant shortly before the occasion charged in the accusation: “I had been seeing him for two years around there, and one time we went to search Tom Phillips’ place—not this one, but the house 3 or 4 doors below that has been torn down—where he stayed before, and got 27 gallons of liquor in the edge of his yard; and another time I went there and got one of these flat quarts of whisky.” Q. “About how long before this transaction was that ?” A. “They were along right together. We would go there once or twice a week and sometimes we would miss two weeks.” This evidence of the possession of the liquor a short time prior to the occasion alleged in the accusation was admissible, because it tended to prove that the defendant knowingly had the liquor in his possession on the occasion charged in the accusation. State v. Hanger, 108 Kan. 115, 116 (103 Pac. 1052). The evidence was admissible as a circumstance from which the jury might infer that the defendant knowingly kept the liquor in his house, and therefore to strengthen the testimony
“It is frequently said that evidence of other crimes is admissible to . . rebut a defense based upon evidence tending to show an absence of knowledge.” 105 Am. St. R. 9, 7. Thus in the instant case the defendant could set up a defense, based upon evidence, that if the whisky was in the house he did not know it was there. I think, therefore, the evidence was relevant to prove scienter or guilty knowledge, and is an exception to the general rule as to the proof of collateral offenses. 1 Wharton’s Cr. Evi. (10th ed.) 35, § 35.
Dissenting Opinion
dissenting. The accusation in this case charges that the defendant, on November 30, 1933, “did have, possess, and control spirituous and intoxicating liquor, to wit, one quart of whisky in bottle and two gallons of whisky in cans, on Strong street, said State and County.” The evidence as to the possession of this named and described whisky by the defendant is entirely
The possessing of whisky in the case at bar was not a question of intent, or the purpose in the mind of the accused, but was a question of a concrete, tangible fact. Cohen v. State, 7 Ga. App. 5 (65 S. E. 1096). “It is not, on the trial of an indictment for one offense, competent for the.State to prove the previous conditions of the accused of another and entirely different offense; and this is so though a fact necessarily established by that conviction was one relevant to the case on trial.” Gay v. State, 115 Ga. 204 (41 S. E. 685). As was said in Lee v. State, 8 Ga. App. 413 (2) (69 S. E. 310). “Proof of other crimes is never admissible . . where its chief or only probative value consists in showing that the defendant is, by reason of bad character (demonstrated through a criminal career) more likely to have committed the crime than he