15 Ga. App. 437 | Ga. Ct. App. | 1914
(After stating the foregoing facts.) Under the general rules of criminal evidence, proof of a distinct, independent 'offense is inadmissible on the trial of one accused of crime. Various exceptions have, however, been recognized; as, for instance: to show motive by establishing a common scheme, plan, or system; to show intent, where intent is not only an essential ingredient of the offense, but is of its very essence; and to rebut special defenses, such as insanity, good character, or accident or mistake. Intent being an essential element of the crime of obtaining goods under false pretenses, evidence of other offenses of a like nature, may be introduced, in order to establish the wrongful intent. In Lee v. State, 8 Ga. App. 413 (69 S. E. 310), this court held that on the trial of one charged with a violation of the act regulating the sale of narcotic drugs, by a sale to a particular person, evidence of sales to other persons was admissible, not for the reason that this proof showed the defendant to be a frequent or habitual lawbreaker, but because it tended to show the purpose or intent which actuated him at the time he furnished the person named with a prescription for cocaine; and the fact that he was daily issuing a large number of these prescriptions, indiscriminately and apparently to all who applied therefor, tended to establish his intent and purpose in so doing, and to determine whether he furnished the drug in good faith and because he deemed it necessary for the treatment of the particular person, or merely in evasion of the law and for pecuniary profit. Also, in Ray v. State, 4 Ga. App. 67 (60 S. E. 816), this court held, that while, as a general rule, in a prosecution for a particular crime, evidence tending to show that the defendant has committed other offenses is not admissible, yet where the testimony offered has a distinct relevancy to the case on trial, it is not inadmissible merely because it tends also to show the defendant’s
In prosecutions for violation of liquor laws, “it is a general rule that the prosecution must prove the sale as laid in the indictment or information, and as that sale is the issue raised, no other sale can be proven, unless they all constitute one transaction, or unless a whole series must be proven to make out the offense charged, or it is necessary to prove a motive or scienter, or to identify the accused.” 2 Woolen & Thornton on Intoxicating Liquors, § 931. Where, however, the intent with which the particular sale was made
The indictment against this defendant charged him specifically with the offense of selling liquor on the 31st day of October, 1913, to one Will Hazel, and with keeping on hand intoxicating liquors at his place of business. The proof showed that on the day named the defendant made a sale of liquor to Hazel, and also that this liquor was purchased by Hazel at the place of business of the defendant as described in the indictment. There was evidence, offered in behalf of the State and admitted by the court over the objection of the defendant, that prior to. the time when Hazel made his purchase, the defendant had elsewhere than at his place of business offered to sell whisky to Vickers; the objection being that since the indictment charged the defendant specifically with selling to Hazel, proof of another sale, or of air attempt to make another sale, to a different person was irrelevant and incompetent. Undoubtedly, so far as relates to the charge of selling intoxicating liquors to Hazel, this objection was good and the evidence was inadmissible; for while it is true that the State, in making out such cases, is not confined to the day named in the indictment, but may prove the commission of the offense at any time within two years prior to the date of the indictment, and therefore any number of sales to Hazel other than the specific sale charged on the day named could, have been shown to support the charge against the accused, nevertheless, where the indictment charges a sale to a particular person, sales to that person and to that person alone, or to the agent of that person, may alone be proved in support of the charge. Had the indictment charged that the sale was made to Vickers, proof that Hazel was the agent of Vickers and that he purchased the whisky for Vickers would have supported the charge; but a sale to Vickers, or an offer to sell him, would certainly not be admissible merely because it appeared that Vickers had authorized Hazel, as his agent, to pur
The defendant was charged with two kindred but distinct offenses, and while evidence relative to an offer to sell to Vickers was entirely irrelevant and inadmissible so far as related to the charge of selling liquors to Hazel, nevertheless this evidence was, under the general rules we have discussed above, relevant and admissible as 'tending to establish the charge against him of keeping intoxicating liquors at his place of business, notwithstanding that the attempt to sell to Vickers was made elsewhere than at the said place of business. The evidence was not admissible in order to establish the purpose for which the defendant kept the whisky at his place of business, since the purpose or intent which may have led him to keep intoxicating liquors at his place of business is, under the general prohibition law, entirely immaterial. Cohen v. State, 7 Ga. App. 5 (65 S. E. 1096). And see Klug v. State, 77 Ga. 735 (5). He was not charged, as under the usual municipal ordinances against the storage of intoxicants, with keeping liquors for the purpose of sale, but was charged under the State law with the offense of. simply beeping liquor on hand at his place of business. The evidence was, however, admissible under another view; for it tended to corroborate the testimony of the witness Hazel, which was to the effect that the defendant kept whisky on hand at his place of business. The fact that the defendant offered to sell Vickers whisky on the very day he was charged with keeping intoxicants at his place of business was a circumstance which undoubtedly tended to establish the fact that he had whisky somewhere, and furthermore that he had whisky somewhere not very remote from the place where he made the offer to sell to Vickers; and hence this testimony corroborated the evidence of Hazel that he obtained the whisky, which he testified he purchased from the defendant later in the same ’day, at his place of business, only a short distance awajr from the place where the defendant made his offer of sale to Vickers.
In Cole v. State, 120 Ga. 485 (48 S. E. 156), our Supreme Court held that on the trial of one charged with illegally selling whisky, “it is not error to admit evidence to show that the house of the accused was searched by officers subsequently to the day on which the alleged sale was made, and that bottles of whisky were found
In the case of Holland v. State, 9 Ga. App. 831 (72 S. E. 290), there was a conviction of a violation of the prohibition law in keeping spirituous liquor on hand at the defendant’s place of business, and in the motion for a new trial it was insisted that the trial judge erred in allowing a witness to testify that he had on repeated occasions bought whisky from the accused, as this evidence was not in rebuttal and was- not relevant or material to the charge of keeping liquor at the defendant’s place of business. In the well-considered opinion in that case, Ilill, C. J., speaking for the court, said: “It is clearly relevant, where one is charged with keeping whisky on hand at his place of business, as corroborative of that charge, to show that about the time he was charged with having it on hand at his place of business he was selling it illegally. If he was selling whisky illegally, it is not unreasonable to presume from these facts that he kept his liquor at s'ome place; and what, is more likely than that he kept it at his place of business-?” This expression from the able former Chief Judge of this court aptly and completely caps the argument advanced in this opinion in support of the proposition which it enunciates briefly and which we have discussed at length.
Where one is indicted under two counts and the evidence fails to establish his guilt under one of the counts, a general verdict can not be sustained, if excepted to for this reason. Dozier v. State, 14 Ga. App. 473 (81 S. E. 368); Morse v. State, 10 Ga. App. 61 (4), 65 (72 S. E. 534), and citations. Here it appears that there was testimony to sustain both counts in the indictment; and testimony was offered which, under our. ruling in this case, was admissible to sustain one count, and irrelevant' and inadmissible so far
Judgment affirmed.