Opinion
35447, 35449. 35448, 35450.
DECIDED JANUARY 26, 1955.
Violating liquor law. Before Judge Fort. Muscogee Superior Court. October 1, 1954.
Ernest C. Britton, for plaintiffs in error.
Russell C. Davison, Jr., Solicitor-General, contra.
1. The evidence amply supports the verdict on each conviction.
2. The special ground in the two convictions for illegally manufacturing whisky shows no cause for reversal.
DECIDED JANUARY 26, 1955.
Dennis Blanton and Acie Bryant were convicted on two charges each — one in that the defendants did "unlawfully make, manufacture, distill spirituous, alcoholic and intoxicating liquor." Each of the defendants was convicted of illegally possessing nontax-paid whisky, for that they did "have, control and possess distilled spirits, to wit, whisky which did not bear the Georgia State tax stamps." The four special presentments involved the same transaction. The defendants were tried together on the same date on the four indictments. They were found guilty on the two charges against each of them. Both defendants filed separate motions for new trial on each verdict against them on the general grounds, and amended motions in each instance were filed for the offense of manufacturing whisky. The defendants assign error on the denial of their motions for new trials.
We will set forth the pertinent portions of the evidence as shown in the record. The State produced E. J. Hancock, who testified: "I am with the Muscogee Police Department. At the present time, I am a patrolman, formerly I was a detective, that is a plain-clothesman. I know these two defendants on trial, Dennis Blanton and Acie Bryant, and have known them for about 20 years. On January 26, 1954, in the course of my duties, I located a still in this county, which was located six or seven hundred yards back of Dennis Blanton's home off the Forest Road or off the Schatulga Road in Muscogee County, Georgia. I located it about 3 in the afternoon, and nobody was with me at the time. I saw from the odor and everything that the still was about ready to run. I was walking down there where they were getting the water and they had just cleaned out the spring. The still was up on the hill. . . They could see every way and so when I saw that it was in that shape, I walked off a little ways, sat down and watched it. I saw Dennis Blanton and Acie Bryant come to the still. I saw them toting wood to the still, and I saw them about the time the fire was built. I didn't see the first puff of smoke, but noticed there was a fire under the still, and they were both around it, and most of the time one was stirring the mash . . . one or the other of them. Both of them were toting wood to the still and I saw them checking up. They appeared to be working over the still, which is the checking-up process so as to make it air tight so that the liquor that comes from the mash will not escape out in the open air but would go through the worm where it would be condensed into liquor, that is the steam would be condensed into liquor. When I first arrived, there was no fire under the still, it was well concealed and very near the level of the top of the ground. It had a little grass sprinkled over it, so the average man walking by wouldn't notice it. The fire was started after these defendants got there.
"This still was about a 200-gallon type with a box type wooden doubler. I mean it was capable of putting out 200 gallons of whisky, we speak of 200-gallon stills that would hold that much mash, that would run off around 20 gallons, according to how much sugar they had in it, if they had sugared heavy it would run off 20 gallons of liquor. When I first arrived and examined the premises I found no non-tax-paid liquor. There were a number of jugs, I don't remember the number, 10 or 12 or more, I don't remember counting them; I didn't see them when I first got there.
"As to my hiding, I first waited right close to the still, and they didn't come and I was supposed to get off duty at 4 that afternoon. I had been working since 8 that morning. I began to ease off around and I crossed a little branch, not always in sight of the still, but pretty near always in sight. Right at 3:55 p. m. is when I saw them at the still. I crawled across the branch and up on the hillside close to the still along about 5:35, and I made my presence known. I had been watching them for an hour and forty minutes, and had seen them tamp the lid down on the still making the lid air tight, and putting dirt upon top of that lid so that the air would not come out. Acie Bryant left the still and came down kind of towards me and right by me. He came as close as here to back of the court room or a little closer and got some wood. In the meantime Dennis Blanton was at the still watching it; there wasn't anything else to do except to pour water in the flakestand. I didn't know that no water had been poured in the flakestand at that time. Dennis appeared to be looking at me, and Acie was walking back toward him. I just knew he was looking at me, so when Acie got close to him, about as close as from here to the back of the building, I got up and went walking that way, and walked some distance before he saw me; they ran. They both ran.
"I went right on to Dennis Blanton's house and used his telephone and called county police headquarters. Captain Brown and I later destroyed the still. After these two defendants ran, the still was still running, and making liquor, part of it was wasted and part of it was dripping out into the worm; I am familiar with the stamps prescribed by the State Revenue Commission; there was no stamp on the jug that had liquor in it. After we went back we destroyed the still and we found about a quart and a half of liquor in the jug sitting there and no tax stamp was on that whisky.
"Dennis Blanton had on a red cap and one of these wool shirts, it's an old Army type wool shirt, dark colored pants; I don't remember what kind they were now.
"As to Acie Bryant, he had on dark clothing. I wouldn't be positive. I went to Dennis Blanton's house to use the telephone. He wasn't there, but his car was. This occurred in Muscogee County, Georgia. I expect the closest I got to Dennis Blanton was about 58 steps from where I was lying and got up and walked toward him and he started running. I got a little closer to Acie Bryant, as close or a little closer than from here to the back of the room there, the back of the court room. I have known them for 20 years, and there is no doubt in my mind that these were the two men at the still.
E. J. Hancock testified as follows on cross-examination: "I started as an officer in the fall of 1918, and I have made a lot of cases. The county police department contains a detective department, and Chief Tuggle told me to go out on this occasion . . . along about dinner time; Chief Tuggle told me to go up to the house and change my clothes and go out to the still. It is closer to the Forest Road. The Schatulga Road runs north and south and the Forest Road runs east and west and juts into it. Dennis lives on the Forest Road just off the Schatulga Road. There are several houses there and it is a thickly populated section. Dennis's house is in sight of the county farm and the tubercular hospital, as well as in sight of numbers of other dwelling houses. A little further to the north there is a subdivision called Sunshine Acres and the Poultry Farm, and a number of houses up and down the Schatulga Road. Just west of Dennis's house is a little church, and there are several houses on this road near Dennis's house. The distillery that I discovered is just a little bit nearer other people's houses than it was Dennis's house, it wouldn't be much difference, there is a house right over the bottom that would be nearer the still. There are numbers of several little branches that fork off and come down and form a big branch, and when I went to the distillery, I came off the Schatulga Road. I didn't park my car near Dennis' house, parked it off the Schatulga Road. Then the way I got to it, I went out the Macon Road, to the Schatulga Road and turned right and continued to this little new subdivision, Sunshine Acres, then the first road that turns off of that road, I drove down, as long as that road went west, there is no house on that road, the road makes a circle, when I first struck this road just where the came is now situated, I drove down that road into a bunch of pines so that it would obscure the car from the area where I was going to look. I left the car there. I then entered the area I was to look about and I came up the branch, crossed it, went up on the hillside up to the top of the hill where I knew an old still site had been before, and I walked up to the still. This distillery is not on the hill and I was down in the valley, it was up near the top of the hill. There were pines and other trees around this still, off some distance, I noticed 2 or 3 little bunches of bushes some 50 yards. I didn't travel the little path into the place. The path I followed up the still was the path that led from where they got the water up to the still. When I came back with Captain Brown, we followed the path coming from Dennis's. In a preliminary hearing I stated that I got from 30 to 40 yards from Acie Bryant. The distance from here to the back of the court room is right at 30 yards. I don't remember saying 40 yards, I thought I said 20 or 30 yards. Now I would say right around 30 yards. That is right at 90 feet. It was 58 steps from where I was lying, but I got a little closer than that to Dennis Blanton. I stepped it off after I went back to the still, and I approximated where Dennis was standing. I just took a guess as to where he was standing, and counted off 58 steps, you might say I started at the still and stepped off to where I was lying.
"I testified outside of wood, I didn't see them bringing anything to the still because they were there at the still when I first saw them. I was attracted by the noise up toward the still, and I wasn't looking right at the still when they first got there, because the first I saw, they were at the still. I was due to get off at 4, and I located the still right around 3. I was alone. I hid myself until about 5:35, that would be about one hour and forty minutes. I looked at my watch at 3:55. I wear it on my arm, and usually glance at it. I fix the time at 3:55 that I saw the boys at the still. For an hour and forty minutes, I didn't stay right there, I mean in that area, I imagine I crawled up about 150 yards at least, I crawled up towards them. I was 150 yards from the distillery when I first saw them or maybe 200 yards. It was 3:55 when I first saw them, and I worked myself nearer and nearer the distillery. It didn't take an hour and 40 minutes to determine who they were. I was getting closer to them so there wouldn't be any doubt as to their identity in my mind. I expect I didn't get any closer to Dennis than 60 yards. I ran for a distance, but I don't run as well as I once did, and I quit. I didn't continue after them. But since I knew them, I just continued on up to use the telephone. I used the telephone at Dennis's house and called Captain Brown. The house that Dennis had been living in was burned . . . he owns several houses there, some 5 or 6, and on Saturday afternoon before this, one of his houses burned, and that was the house he was living in at the time. I know it was one of his houses all right, but I presumed that the reason I stated it was Dennis Blanton's house is because it is Dennis Blanton's house whether he lived there or not, but I know this much, that it is his house, because he owns some 5 or 6 houses right there in a cluster and also a store. I never did see a deed. Dennis and Acie Bryant had been good friends with me for years and he told me any number of times whenever he was going to build a house that he was going to build a house. I meant to tell you that I used the phone at Dennis's house. It is Dennis's house and whether he actually lives in it or not, I wouldn't be able to tell you or not. I used the phone with the permission from the woman who looked like Dennis's wife. Dennis was not there, and I went in and used the phone and I don't know whether or not she heard the conversation.
"I did not arrest the boys because they went away and I got off then after we destroyed the still. Yes, I saw them from 3:55 thereafter for one hour and forty minutes."
The same witness, recalled, testified on cross-examination: "It is true that I caused both of these boys to be arrested, on my information. I did not hold Acie Bryant for investigation without giving him the benefit of a bond. No, sir, I did not. I never knew that he was in until a day or so later. I didn't even know if they had been arrested until a day or two later. I didn't leave instructions for them to be held for investigation."
On recross-examination, he testified: "Yes, sir, I heard testimony with reference to where the house was located. Dennis and Acie were supposed to have been working on it. It would take a man about 5 to 7 minutes to walk through the woods to where the still was. Not from the house Dennis was building to Dennis's house, but to the still. He could have walked from the still to any other house in less time than that because they were closer."
Odell Lee testified for the defendants that, on the date of the occasion in question, he saw the defendants working on a house between 10 and 11 in the morning. He did not see them in the afternoon.
Eugene Howell testified for the defendants that he knew them; that he recalled that on January 26, 1954, he peddled produce in the section where the defendants were working on a house; that he saw the defendants working on the house at about 10 o'clock in the morning and saw them at about 3:30 o'clock in the afternoon on the same date working on the house; that witness was from 50 to 75 yards from the house; that the defendant, Dennis Blanton asked the plaintiff to come to court and the witness remarked: "Well, I seen you."
Joe Helms testified for the defendants that he arrived at the store of the defendant Blanton between 3 and 4 o'clock in the afternoon; that he was leaving as the 4:15 bus came by; that he went "over in a field" where the defendants were working on a house and talked with the defendants; that he left the defendants at the house at 4:15 or 4:20 o'clock; "I sell him, [Blanton] bread, and he is a good customer. I would hate to see him close up his store." The witness testified on cross-examination: "I can't say what time I left, because I didn't look at my watch, and all I can tell the jury is sometimes between 3 and 4 o'clock. I stayed about 20 minutes, it would be 3:20."
Dennis Blanton made a statement in his own behalf to the effect that he was working on a house all the afternoon on the occasion in question and that Bryant was helping him, and that he did not go to the still at all and did not know anything about it.
Acie Bryant made a statement in his own behalf to the effect that he worked all day on the date in question and knew nothing about the still.
1. We have set out the evidence somewhat in detail. Insofar as the general grounds are concerned regarding the two charges against each of the two defendants, the evidence is abundantly sufficient to sustain the verdicts.
2. There are no special grounds regarding the possession of non-tax-paid whisky. The only other question before us is whether or not the special ground regarding the illegal manufacture of intoxicating liquors is meritorious. That ground reads: "Because the court erred in charging the jury as follows: `Now, gentlemen, it is against the law of Georgia to manufacture spirituous or alcoholic liquors. If they were there, and the beer was ripe and to the state where it would intoxicate and it was on the still and running, gentlemen, that would be manufacturing'. Movant avers that such charge was erroneous and injurious to him, because: (A) That it was misleading to the jury. (B) Said charge was also erroneous for the reason that such charge bluntly says it is against the law to manufacture spirituous or alcoholic liquors in the State of Georgia, whereas, as a matter of law it is legal to so manufacture upon compliance with the law of Georgia, as referred to and set forth in Code of Ga. Ann., section 58-1067.
"(C) Said charge presupposes the guilt of the accused in that the jury were told it would be against the law of Georgia to manufacture spirituous or alcoholic liquors, without further charging unless `otherwise than as permitted in this chapter' — all as set forth in Code section 58-1067.
"(D) Muscogee County, Georgia, being a `wet county' of which the court must take judicial knowledge, that spirituous or alcoholic liquors can be manufactured upon compliance with law, the court erred in not charging the whole and correct law in reference thereto."
It must be kept in mind that the only defense of the defendants was the defense of alibi. The defendants by witnesses and by their statements sought to prove this defense, but failed to convince the jury that such defense had been established. Under all the facts and circumstances of this case, the excerpt from the charge of the court was applicable and sufficient.
We must mention here that counsel for the defendants contend that this court should take judicial cognizance that Muscogee County is a "wet" county, and that the charges were injurious to the defendants because the court should have gone further in this regard. It is well-established law in this State that. where the State proves a charge as alleged and the evidence in proving such charge involves an exception, the burden shifts to the defendant to prove that the defendant comes within the exception. The defendants in the instant case did not offer any evidence that they came within any sort of exception which would authorize them under all the facts of this case to complain that in the trial no such exception was alleged or proved. The evidence for the State proves the identity of the defendants and further proves that they did manufacture intoxicating liquors as alleged and proves that they did illegally possess non-tax-paid whisky.
The court did not err in denying the motion for new trial in any of the cases against these defendants.
Judgment affirmed. Townsend and Carlisle, JJ., concur.