Opinion
41314.
SUBMITTED MAY 4, 1965.
DECIDED MAY 12, 1965. REHEARING DENIED MAY 26, 1965.
Possessing and selling nontax-paid liquor. Athens City Court. Before Judge Oldham.
Guy B. Scott, Jr., for plaintiff in error.
Preston M. Almand, Solicitor, contra.
1. The general grounds of the motion for new trial are without merit.
2. Where a defendant is charged in one count of an indictment with the offense of possessing on a stated date liquor on which the tax due the State had not been paid and which did not bear the tax stamps required by law, and in another count of selling the nontax-paid liquor on the same date, and the evidence refers to but a single transaction, it is not error for the court to charge that "while it would be possible for you to find the defendant guilty of possessing and not guilty of selling, it would, of course, not be possible to find the defendant guilty of selling and not guilty of possessing, as such a verdict would be void and of no effect."
SUBMITTED MAY 4, 1965 — DECIDED MAY 12, 1965 — REHEARING DENIED MAY 26, 1965.
Frank Colley was indicted in count 1 for possessing nontax-paid liquor on February 1, 1964, and in count 2 for selling nontax-paid liquor on the same date. J. M. Robinson, an alcohol tax unit agent, testified for the State: "I have known Frank Colley since February 1, 1964, when I saw him at his home at 923 Water Street, Athens, Clarke County, Georgia, between the hours of 7 and 7:30 p. m. I went to his house to purchase some whiskey. I went up on the porch and knocked on the door. The defendant, Frank Colley, came to the door and I talked to him and asked him if he would sell me a pint of whiskey. He went and got me one pint of Government whiskey with South Carolina tax stamps thereon but on which was not affixed Georgia tax stamps as required by the law of Georgia. I paid Frank Colley $5.00 for this pint of whiskey."
The defendant made an unsworn statement: "I am Frank Colley and I have never seen Mr. J. M. Robinson before I was arrested in April, 1964. I did not sell Mr. Robinson a pint of whiskey and do not sell whiskey or possess any."
In instructing the jury the court charged: "If you should find the defendant guilty on one count and not guilty on the other count, then, in that event, it would of course be necessary for you to specify in your verdict the count on which you have found him not guilty. In this regard, the court charges you that while it would be possible for you to find the defendant guilty of possessing and not guilty of selling, it would, of course, not be possible to find the defendant guilty of selling and not guilty of possessing, as such a verdict would be void and of no effect."
A verdict of guilty on both counts was returned.
In special ground 1 of the amended motion the defendant excepts to the last sentence of this excerpt from the charge on the grounds that it was (a) argumentative, (b) confusing to the jury, (c) misleading to the jury, and (d) suggested or intimated an opinion as to the guilt or innocence of the defendant.
To the overruling of the amended motion defendant excepts.
1. The evidence was ample to sustain a verdict of guilty on both counts.
2. The charge was a correct statement of the law. Dealing with a similar problem the Supreme Court asserted: "The offense of having, controlling, and possessing spirituous liquors in this State, as alleged in the second count, could be committed without making a sale of the spirituous liquors; but the offense of selling, which contemplates delivery within the meaning of the prohibition statutes as the culminating feature of the sale ( Cureton v. State, 136 Ga. 91, 70 S.E. 786, and cit.), could not be committed without having, controlling or possessing liquors. There would be no inconsistency or repugnancy in a verdict of guilty under the second count and not guilty under the first count, but there would be inconsistency and repugnancy in a verdict of guilty under the first count and not guilty under the second count; for if there was no `having, controlling or possessing,' there could be no `selling.'" Kuck v. State, 149 Ga. 191 ( 99 S.E. 622). "Where an indictment contains two counts, one for selling, the other for possessing intoxicating liquors, it is not erroneous for the court to instruct the jury that the accused could not be guilty of the offense of selling whiskey without also being guilty of the other offense." Arnold v. State, 39 Ga. App. 680 ( 148 S.E. 283).
This is true where the evidence justifying a conviction relates to but one transaction. If more than one transaction were relied upon as to the separate counts an acquittal on one and conviction on the other would not involve repugnancy. For example, a defendant may be convicted of selling a pint of whiskey but acquitted of possessing 35 gallons, Byrd v. State, 51 Ga. App. 541 ( 181 S.E. 100), or a lottery operator may be convicted on one count charging the maintaining and carrying on of a lottery but acquitted on another charging the sale of lottery tickets. Miller v. State, 48 Ga. App. 786 ( 173 S.E. 491). For other cases sustaining our holding, see Boyd v. State, 156 Ga. 48 ( 118 S.E. 705); Owen v. White, 182 Ga. 67 ( 185 S.E. 97); Phillips v. State, 27 Ga. App. 1 ( 107 S.E. 343); Smith v. State, 38 Ga. App. 366 ( 143 S.E. 925); Davis v. State, 43 Ga. App. 122 ( 157 S.E. 888); Evans v. State, 46 Ga. App. 39 ( 166 S.E. 449); Cannon v. State, 71 Ga. App. 757 ( 32 S.E.2d 124); Holder v. State, 88 Ga. App. 859 ( 78 S.E.2d 261). It is not error for the court to charge that if the jury convicts on the count charging selling there is a presumption of possession and that the jury should convict of that offense. Leggett v. State, 36 Ga. App. 661 ( 137 S.E. 789).
It is to be observed that the evidence here related to only one transaction — the purchase of one pint of whiskey from the defendant.
It is contended that the charge was error because the jury might have found that the whiskey did not have south Carolina stamps affixed but had Georgia stamps on it, in which event the possession of a pint is lawful. Code Ann. §§ 58-1073, 58-1077. There was no evidence whatever contradicting the agent's testimony that the pint which he purchased from the defendant had no Georgia stamps affixed but did have South Carolina stamps on it. In his unsworn statement the defendant simply denied having possessed or sold whiskey. "It is possible . . . but this theory can not be indulged, because it is entirely unsupported by the evidence of any witness, and is not even sanctioned by the defendant's statement in his own behalf." Bush v. State, 170 Ga. 343, 346 ( 153 S.E. 2). Recently the Supreme Court dealt with a somewhat similar contention in a different kind of case, holding: "Where, as here, the evidence is sufficient to show beyond a reasonable doubt that the defendant committed the offense . . . his conviction is authorized although the evidence does not exclude vague conjectures or remote possibilities of the defendant's innocence." Ivy v. State, 220 Ga. 699 ( 141 S.E.2d 541). Relative to argument that "someone could have entered the back of the house when all of the witnesses were at the front of the house, murdered the deceased, wounded the defendant and fled undetected," the court asserted: "This theory presents only a sheer possibility unsupported by proof."
The theory that the pint of liquor may have had no South Carolina stamps on it and may have had Georgia stamps on it, contrary to all the evidence about that matter, is no more than a "sheer possibility" and shows no error in the charge. Cf. Graves v. State, 71 Ga. App. 96, 99 ( 30 S.E.2d 212); Harris v. State, 86 Ga. App. 607 (1) ( 71 S.E.2d 861).
The charge was not error for any reason urged.
Judgment affirmed. Nichols, P. J., and Pannell, J., concur.