Opinion
33001.
DECIDED MAY 3, 1950.
Violating liquor law; from Sumter Superior Court — Judge Harper. January 28, 1950.
Fort Fort, for plaintiff in error.
E. L. Forrester, Solicitor-General, contra.
1. The evidence amply supports the verdict on the general grounds.
2. The special grounds are without merit for the reasons set out in the body of the opinion.
DECIDED MAY 3, 1950.
The defendant was indicted for the offense of unlawfully making whisky. The jury returned a verdict of guilty. A motion for a new trial was made on the general grounds, which was later amended by adding four special grounds. The court overruled the motion for a new trial, and it is on this judgment that error is assigned here.
The evidence discloses that the defendant, B. R. Houston, was present at the still, which was in operation. Sheriff A. F. Davis, of Sumter County, testified that he and a deputy sheriff followed car tracks to near where the still was found; that the witness got behind some small trees and noticed a white man and two Negroes going backward and forward from the still to the car; that the white man was the defendant here; that the defendant would bring whisky from the still, in a bucket, then pour the whisky from the bucket into kegs, which kegs were placed near the car; that the other members of the party made frequent trips also; that the witness stayed there about twenty or thirty minutes; that "I positively knew and saw B. R. Houston coming from that still and bringing those containers and pouring it in those kegs." The witness and the deputy sheriff went to the still, where they found 20 gallons of whisky in each of seven kegs, also six five-gallon jugs, a total volume of 178 gallons of whisky; the still was hot; the defendant and the others fled from the still. Witness further testified: "I radioed and checked the number on it [the car which was found at the still]; he [the defendant] said the car was his. . . I saw those containers sitting right behind this automobile that Mr. Houston [the defendant] said was his." On cross-examination, the same witness testified that he had seen the defendant at various times on the streets, and had seen him in the car several times pass Drayton Bridge; that he had never known the defendant's name before.
J. C. McArthur, sworn for the State, testified that he accompanied Sheriff Davis to the still, and testified substantially as did Sheriff Davis. He also testified that when the defendant was apprehended the next day after being seen at the scene of the still, the defendant stated, upon being asked why he ran away from the still: "Mr. Jack, the rest of them run and I just could not help it." The witness stated that the defendant made the statement freely and voluntarily, without the slightest fear of injury, or hope of reward.
The defendant denied any participation in making the whisky, and explained that he went to the still to buy whisky.
1. Since the general grounds, and special grounds 1, 2, and 4 go to the sufficiency of the evidence, we will treat them together. We have set out the evidence somewhat in detail, since counsel so earnestly contend that it is insufficient to warrant a verdict of guilty, that the evidence was circumstantial only, and that the flight of the defendant was consciousness of his attempted purchase of whisky. Counsel cite no authorities for the contentions, except as to special ground 3, which we will discuss in a separate division.
In Smith v. State, 46 Ga. App. 351, 353 ( 167 S.E. 714), this court said: "Presence of a person at a distillery where intoxicating liquor is being made, and his flight on seeing an officer approaching, may, when not satisfactorily explained, authorize a jury to find him guilty of making such liquor. Whether an attempted explanation of such presence and conduct is reasonable and satisfactory is a question for the jury." There are many citations of authority to this same effect cited in the Smith case. See also Loughridge v. State, 63 Ga. App. 263 (1, 2) ( 10 S.E.2d 764); Chester v. State, 74 Ga. App. 667 ( 41 S.E.2d 162); Johnson v. State, 79 Ga. App. 210 ( 53 S.E.2d 498), The evidence is amply sufficient to sustain the verdict and judgment.
There is no merit in the contentions as to the general grounds and special grounds 1, 2, and 4.
2. Special ground 3 complains because the court erred in charging the jury as follows: "The law is, that if one aids, counsels or abets or in any wise participates in the making of such whisky, he is guilty of making whisky as defined by the law. I charge you in that connection that the presence of a person at a distillery where intoxicating liquor is being made and his flight on seeing an officer approaching, may, when not satisfactorily explained, authorize a jury to find him guilty of making such liquor." Error is assigned on this excerpt from the charge in that, although it is admitted that the charge is a correct abstract principle of law, the charge was not adjusted to the facts of the instant case because it is contended that the defendant was at the still site for the purpose of purchasing whisky, and that the charge of the court as to flight was unfair to the defendant and placed upon his flight far greater importance than the evidence justified.
Counsel for the defendant contend that the court should have elaborated on the subject of flight. There was no written request for a more elaborate instruction. Therefore, the case of Weldon v. State, 21 Ga. App. 330 ( 94 S.E. 326), is controlling as to this feature. See also Rogers v. State, 80 Ga. App. 585 ( 56 S.E.2d 633). We are of the opinion that the charge of the court as to flight was justified, in view of the evidence as set out hereinabove.
There is no reversible error in this special ground.
The court did not err in overruling the amended motion for a new trial for any of the reasons assigned.
Judgment affirmed. MacIntyre, P. J., and Townsend, J., concur.