19 S.E.2d 40
29264.Court of Appeals of Georgia.
DECIDED FEBRUARY 26, 1942.
The court did not err in overruling the motion for new trial.
DECIDED FEBRUARY 26, 1942.
Violating liquor law; from Statesboro city court — Judge Kirkland. July 10, 1941.
The defendant was convicted in the city court of Statesboro on two counts for possessing and transporting tax-unpaid moonshine whisky. He filed a motion for new trial based on the general grounds and subsequently amended by adding four additional grounds. His motion was overruled and he excepted.
The evidence for the State was in substance as follows: The sheriff had information that the defendant was illegally possessing and transporting whisky. The officers, two of them, obtained a search warrant; they parked on a side road near the highway over which the defendant was expected to travel. The defendant came by with his eleven-year-old son. The officers began chasing the defendant, who increased his speed continuously; the chase continued for a distance of seven or eight miles, with the officers blowing their siren in close pursuit and in sight of the defendant all the time; the distance varying twenty to fifty yards. It was at night; the defendant was driving from sixty to eight miles per hour. Finally the defendant turned his car to the right over a ditch two and one-half or three feet deep, demolishing shrubbery and small trees. As he turned from the highway to go over the ditch the lights of his car were extinguished. The officers, not willing to proceed across the ditch, proceeded down the road rapidly for several hundred yards, turned around, and drove to the place where the defendant’s car had left them. This consumed a very few minutes. As they approached the point where defendant’s car went across the ditch, the defendant’s car was returning to the highway some short distance from the point where defendant had driven his car across the ditch. It was the defendant’s car as revealed by tag number which had been all along observed. The defendant again drove in the opposite direction from which he had come, with the officers in pursuit of him blowing their siren, and he refusing to stop or let them pass until they reached Virgil Wood’s house, where the officers crowded him into a car parked there and forced him to stop. The officers went to the defendant’s car, arrested him, and searched his car. They found in it a hose
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about three feet long, with the odor of whisky in it. The car was wet inside and the odor of whisky was detected. The officers took the defendant to the place where he had driven his car over the ditch, and went into the woods for a distance of fifteen or twenty steps; there the car apparently stopped. A very short distance from where the car stopped, tracks, apparently of some one running, were discovered, and at the termination of the tracks a ten-gallon jug containing about eight gallons of tax-unpaid moonshine whisky was located. The same tracks that led from where the car stopped to the whisky reversed themselves and returned to the place where the car parked. The tracks of the car indicated that it was turned around, and re-entered the highway at the exact place where the officers saw the defendant’s car re-enter after they had seen it jump the ditch and drive into the woods. The keg had a leak in it, and the odor of whisky in the keg was the same as the odor in the car. There were no car tracks other than the car tracks which pulled out of the ditch, went near where the whisky was deposited, and returned to the highway; and these tracks corresponded in every way, so far as the officers could tell, to the tracks of the defendant’s car which jumped the ditch and returned to the road. The tracks leading from the place where the car parked in the woods to the keg and return corresponded in size to shoe tracks of the defendant.
The defendant introduced evidence which in some details contradicted the evidence of the State. In his statement he attributed his flight from the officers to the fact that he had about $100 that he did not want to lose to highwaymen; that he voluntarily stopped at Mr. Wood’s for the purpose of collecting some money which Mr. Wood owed him; that he did not possess any liquor and knew nothing about it.
We might add in this connection that the State’s evidence showed that shortly after the chase began the defendant and the officers passed by Wood’s house.
W. G. Neville, for plaintiff in error.
B. H. Ramsey, solicitor, contra.
GARDNER, J.
As to the general grounds, we think the evidence abundantly supported the verdict. The first ground of the amended motion complains that the evidence above set out in substance was wholly circumstantial, and that the court, without a
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written request, should have charged the law of circumstantial evidence. We do not think the evidence was wholly circumstantial. This being so, failure to charge the law of circumstantial evidence in the absence of a written request was not error. Special grounds 2 and 3 complain that the court should have charged the following part of the law governing said offense: “Intended for sale in this State except for delivery to a State warehouse provided for in this section.” This contention is without merit.
Ground 4 complains of the court’s charge to the effect that if the jury believed that the defendant, under the law, illegally possessed the whisky as charged they would be authorized to convict him. However, the court later, almost immediately, corrected this by calling the jury’s attention to the error, and further instructing them to the effect that he should have instructed them, and meant to instruct them, as to the possession and transporting of the whisky as alleged in the accusation. This ground is without merit.
The judge did not err in overruling the motion for new trial.
Judgment affirmed. Broyles, C. J., concurs.
MacINTYRE, J. dissenting.
I can not agree with the majority opinion. The evidence connecting the defendant with the whisky was circumstantial. It appears that the automobile in which the defendant was riding was seen to turn off of the public highway into a side road. A few minutes later the officers who were following the defendant came to the point where the defendant turned off the public highway and sought to connect the defendant with certain moonshine whisky by tracing automobile and foot tracks to a point some distance from the public road, down the side road, and eight or nine steps from the side road, in some bushes and small trees where the moonshine whisky in question was found in a ten-gallon keg. This occurred at night, and the place where the whisky was found was not on the premises of the defendant, or in an inclosure, but was near the settlement road which ran from the public road, and close to the whisky on one side was the home of one Jessie White, and on the other was a tobacco bed. It seems to me it is going too far to say that the tracks of the automobile, which disclosed no peculiar mark to identify them as the tracks of any particular automobile, were the tracks of the defendant’s car, and not the tracks of some other automobile that had gone to the house of White, or to the tobacco bed. Nor were
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there any marks by which the foot-tracks could be identified. “Many a man has been convicted of a crime on proof of the identity of tracks; but foot-tracks alone would never be sufficient. [Citations.] It must be shown, not only that the foot of the accused fitted into the track, but that there was something peculiar about it, which distinguished it from those of other people.” Patton v. State, 117 Ga. 230, 235
(43 S.E. 533). Applying the rule in the Patton case to the evidence above, this character of circumstantial evidence was not, in my opinion, sufficient to support a conviction where there was nothing peculiar in the tracks, either of the man or the automobile, to distinguish them from the tracks of other men or other automobiles that could have been in that neighborhood, and to clearly identify them as the tracks of the accused or of his automobile. Lindsey v. State, 9 Ga. App. 299, 300
(70 S.E. 1114). There was nothing in the evidence to supply the defect that there was no peculiarity in either the track of the man or that of the automobile. Patton v. State, supra. I do not think the evidence authorized the verdict. I think the judge erred in overruling the motion for new trial.