102 Ga. App. 327 | Ga. Ct. App. | 1960
Dale Vinson was convicted of possessing non-tax-paid whisky. A motion for a new trial based on the general grounds and four special grounds was overruled and it is to this judgment that the case is here for review.
The defendant made a rambling statement which did not affirmatively show that he denied his guilt.
Special ground 1 assigns error because it is contended that the court illegally admitted certain evidence over objections of counsel for the defendant, such evidence concerning the number of empty bottles found at the defendant’s home. Since the bottles were found at the home of the defendant, it naturally follows that this was part of the evidence submitted by the State in regard to the guilt of the defendant. We do not see that the defendant can complain that evidence in regard to the empty bottles could inflame the minds of the jury. Counsel for the defendant cites in support of the contention that this evidence unduly influenced the jury the case of Brown v. State, 94 Ga. App. 542, 544 (95 S.E.2d 302). That case is not on all fours with the case at bar because the facts and the pleadings are entirely different from the instant case. In order for the exclusion of evidence to be considered as a ground for a new trial it must appear that a pertinent question was asked and the
We will next discuss special ground 3 since it is so interrelated with special ground 1. Special ground 3 assigns error because it is alleged that the court erred in failing to charge on circumstantial evidence. We hold that the evidence in the instant case was not wholly circumstantial and that the court did not err in failing to charge on circumstantial evidence. In the case of Morris v. State, 51 Ga. App. 145, 146 (179 S. E. 822) this court held: “. . . When the State, by direct evidence, showed that the liquor was found in the defendant’s home, that he and his wife resided together, and that they were the only persons present in the home at the time of the finding of the liquor, this was direct evidence, and tended to establish the State’s case on all the elements of the crime, including knowledge, for the law presumes the liquor belonged to the defendant as the head of the family.” See cases cited therein.
Special ground 2 assigns error because it is contended that the court erred in admitting evidence to the following effect: “We can’t take out a warrant for a man selling whisky, when we don’t know whether we are going to catch him or not, before we get there.” We cannot see that the testimony of the officer in describing the procedure used in his usual duties was prejudicial or harmful to the accused. This special ground is not meritorious.
Special ground 4 assigns error because it is alleged that the trial court at no place in its charge told the jury what stamps, if any, were provided, and left the jury to conclude from their own conjecture that a stamp was provided. The record does not show that there was a request to charge on this point. We do not consider it reversible error to fail to charge as contended in this special ground. This special ground is not meritorious.
In view of the whole record in this case we hold that the court did not err in any respect.
Judgment affirmed.