Opinion
32897.
DECIDED FEBRUARY 24, 1950.
Selling beer without license, etc.; from Hall City Court — Judge Blackshear. November 28, 1949.
Stow Royal, for plaintiff in error.
C. E. Smith Jr., Solicitor, contra.
The evidence sustains the conviction under each count of the accusation as is shown by the record set forth in the opinion.
DECIDED FEBRUARY 24, 1950.
The defendant was tried and convicted on an accusation containing two counts. The first count was for selling beer without first obtaining a license as provided in the Code (Ann. Supp.) § 58-726. The second count charged the defendant with possessing beer for the purpose of sale without first obtaining a license as provided in the Code (Ann. Supp.) § 58-726. The defendant filed a motion for a new trial on the general grounds only. This motion was overruled and he assigns error here on that judgment. The case was not reported and counsel for both the State and the defendant entered into a stipulation as to the evidence produced at the trial. This stipulation is:
"That the defendant, Edmond Harris, did not possess a license for the sale of beer in Hall County, at the time this case was made.
"W. A. Crowe, former Sheriff of Hall County, being duly sworn, testified for the State as follows: `I was sheriff of Hall County, Georgia, on the occasion I made this case against Edmond Harris on or about June 26, 1948. His place was out Athens Road, and I came up to it from behind and looked into it through a hole in a piece of tar paper that was over a back window. His place is in Hall County. I saw Edmond and a small boy — I think his brother's boy — in the place, and as I looked one of them handed a can of beer to a Negro. I couldn't be sure which one handed the beer to the Negro, and I couldn't see any money passed. It was a dark and kind of rainy night, and I went around and went in and went to the back room where I found a 55 gallon barrel cut in half and the half barrel was full of ice and beer. I didn't count the cans of beer, but there looked to be better than a case in the half barrel. Then there was two or three cases of beer that was not on ice. Also, in the back room was some old automobile cushions and it looked like someone had been sleeping there. In the front of this store building there he had some fried meat skins, potato chips, cheese crackers and a few little things like that. I don't guess he had over fifteen dollars worth of stock in the store besides the beer. I made a case against Edmond that night. In the past two years, and just before this case was made, I had numerous occasions to observe the place. It was operated by Edmond and Marion Head — the same place we are talking about here — and on numerous occasions have observed people — white and colored — coming from the place with beer. There was a lot of traffic to and from the place. I had been to the place a number of times before I made this case, and had seen beer there before, and had told Edmond that if he did not quit selling beer I would have to make a case against him.'
"C. W. Wilson, sworn as a witness for the State, testified as follows: `At the time this case was made I was a deputy sheriff of Hall County. I was not with Mr. Crowe at the time he made this case, but was watching another place about a quarter of a mile away. I had never actually seen Edmond sell any beer, but I had seen him several times previously hauling empty beer cans away from the store there in a pick-up truck. The bed of the truck was usually full of cans when I saw it. Some of the cans looked real fresh and others looked a day or two old. I had been to the place several times before and I have seen the half barrel that Mr. Crowe mentioned full of ice and beer on several previous times, and usually he would have from three to five cases of beer not on ice also. He told me he was not selling beer, but was giving it away. Up in the front part of the store he had some meat skins, potato chips, cheese crackers and a small amount of stuff like that. I don't guess his entire stock, other than beer, would ever have brought fifteen dollars. Edmond and Marion Head said they were partners in this store out there, and Marion complained to me at one time before that Bill Edwards had cut the price of beer and was underselling all the rest of the folks out that way, and I asked him what difference it made to him if they were just giving it away. Edmond Harris, the defendant, was present during this conversation. Over a period of time before this case was made, and within two years, I had observed a lot of traffic to and from this place, both white and colored people, and I had frequently seen people carrying beer away from there in paper sacks, and it looked like they would have from two to six cans in a sack. You could see the shape of the cans through the sack, and I have also seen the cans in cars leaving there.'
"The defendant, Edmond Harris, made the following statement: Gentlemen of the jury, I was not selling beer at my place of business on Athens Road. I did have some in the back room of my store building, but I had it to drink and for my friends. I never did sell any beer and did not keep my beer for sale. I did haul beer cans away from my store building, but the cans were there when I rented the building and started running the store, and I hauled them away at intervals.'"
Counsel for the defendant Edmond Harris contend that the evidence is insufficient to warrant a verdict of guilty on either count. In support of this contention the cases of Harris v. State, 41 Ga. App. 324 ( 152 S.E. 910), and Singleton v. State, 12 Ga. App. 572 ( 77 S.E. 888), are cited. The facts in those cases show that the court was dealing with one single transaction in which no sale was consummated. The facts in the instant case, as will be observed by reference to the stipulations above set forth, set out an entirely different state of facts and such facts are sufficient to prove circumstantially that the accused illegally sold, as charged in count 1, and illegally possessed, as charged in count 2, the beverages described in the accusation as to both counts. The evidence sustains the verdict as to both counts. See in this connection Buchanan v. State, 77 Ga. App. 435 ( 49 S.E.2d 157), and Howard v. State, 77 Ga. App. 712 ( 49 S.E.2d 684). The violation as set forth in each count may be proved by circumstantial evidence as well as direct.
The evidence is abundantly sufficient to sustain the convictions.
Judgment affirmed. MacIntyre, P. J., and Townsend, J., concur.