7 Ga. App. 27 | Ga. Ct. App. | 1909
The defendant was convicted of a violation of the-prohibition law. One witness testified positively to a sale of whisky; that he was familiar with the effects of whisky, and that the liquid he bought was intoxicating. Another witness testified,, that he was informed that the defendant was engaged in selling intoxicating liquors, and that he went to the defendant’s house, on a rice plantation about nine miles from Brunswick, and stationed himself where he could see inside, through a hole about as large as. his fist, and saw quite a number of persons served by the defendant from a jug; that the liquid was first poured into a tomato can for the customer, who thereafter drank it from a broken wine glass; that after satisfying himself as to the nature of the transaction being conducted in the defendant’s house, he entered the house in company with another, arrested the defendant, and seized the jug,
1. The evidence authorized the conviction ■ of the defendant. The testimony of the witness Powell was direct and unequivocal, to the effect that he bought from the defendant, at a time within the statute of limitations, a half pint of whisky, and paid him thirty-five cents for it; that he bought the whisky and drank it, and that it was intoxicating.
2. An effort was made to impeach the testimony of Powell by proof of bad character. Most of the witnesses introduced for this purpose testified merely to the effect that his character was bad, for fighting and shooting; and of course, upon this, the jury would have been authorized to find that although the witness was turbulent, he need not for that reason be untruthful. But, though there was testimony which fully met the requirements of testimony designed to impeach a witness by proof of general bad character, the jury were not bound, for this reason, to discredit the testimony of the witness whose impeachment was attempted. .In the first place, the jury saw the attacking witnesses, as well as the witness attacked, and may have been convinced, from their appearance upon the stand, that the witness attacked was more trustworthy than those by whom it was sought to impeach him. Or if not (and this is
3. When the witness Higginbotham was introduced, the defendant asked that the jury be retired, and strenuously maintained that the witness was incompetent to testify, by reason of the fact that he was, interested in the result, and would receive a reward of $25 in case of the conviction of the defendant. The court overruled the objection, and Higginbotham was permitted to testify, as has already been stated, as to having seen several persons purchase and pay for a liquid poured from a jug into a tomato can at the defendant’s house. The witness admitted that a reward of $25 had been offered by the county commissioners of Glynn county, to be paid to the informant, in each ease where a conviction of violating the prohibition law was secured, and that he expected to receive that reward if the defendant was found guilty. There is no merit in the contention of learned counsel of plaintiff in error that Higginbotham, because he was an informer and because he would receive a reward of $25 in event of the defendant’s conviction, was incompetent to testify. The interest of a witness may affect his credibility, but it does not touch the competency of his testimony, except as expressly provided in the six exceptions to the general rule laid down in §5269 of the Civil Code. Interest may discredit, but generally it does not disqualify a witness. We admit that if we were jurors and it appeared that the prosecuting witness was to receive money in case of conviction, and that this was the motive inducing his testimony, we would not as readily yield to the conviction of the defendant’s guilt as if the testimony came from a disinterested witness; but it could not be held that a witness’s pecuniary interest in the result of the ease stopped his
4. Another ground of the motion for new trial complained that the judge permitted the jury to take with them to the jury
We thoroughly agree with counsel for plaintiff in error in the proposition that a juror is not permitted to take into consideration his private knowledge of facts in reaching a verdict, and that no testimony can be introduced as against a defendant except in a public trial. But even if one or more of the jurors, in the consideration of the ease after they retired, tasted the liquid, and thus ascertained that it was or was not whisky, we do not see that the case would have been different from his looking at the wine glass and determining from the peculiarity of its fracture (which had been testified to) that it was a glass. Each is alike a case of identification by one of the five senses. In the identification of the
Judgment affirmed.