Opinion
33778.
DECIDED OCTOBER 18, 1951.
Violating liquor law; from Clarke Superior Court — Judge West. July 21, 1951.
Edwin Fortson, James W. Arnold, for plaintiff in error.
D. M. Pollock, Solicitor-General, contra.
1. Where character has been put in issue, it is not permissible in rebuttal to prove specific acts of bad character, except on cross-examination for the purpose of testing the witness's knowledge or to impeach the defendant's statement. Nevertheless, the admission of evidence here that the police officer had received reports concerning liquor violations by the defendant in rebuttal of evidence that he had never been previously arrested for liquor violations, the defendant conceding that he had placed his character in issue as to liquor violations, was not such error as to require reversal.
2. Where the conviction does not depend upon circumstantial evidence alone it is not error, in the absence of request, to fail to charge this principle of law.
3. The charge that a man cannot be guilty of transporting whisky unless he possesses it was correct and did not express an opinion that the defendant did in fact possess liquor.
4. The evidence authorized the verdict, and the judgment of the court overruling the motion for a new trial will not be disturbed by this court.
DECIDED OCTOBER 18, 1951.
The defendant Joe Allen Johnson was indicted, tried and convicted in the Superior Court of Clarke County of possessing and transporting illegal liquor. Upon the trial of the case two police officers, witnesses for the State, testified that in response to information that a car carrying illegal liquor and driven by the defendant would be in a certain locality, they set out to locate it; that they saw a Mercury driven at a rapid rate of speed and turned to check it; that the car broke out of line and reached a speed of over 90 or 100 miles per hour traveling toward town; that the officers turned on the siren and spotlights, centering the latter upon the driver's side; that after a lengthy chase the car veered to the left; the door on the driver's side came open, and the driver stood for a moment on the running board looking back at his pursuers before jumping; that the spotlight was on him and the witness recognized him as the defendant; that he had known the defendant for over a month and had stopped him and checked his license the night before, at which time he was driving the same automobile; that another unidentified man jumped from the right side of the car and got away; that the defendant also got away, but the officers searched the car and found in it 11 cases of non-tax-paid whisky. The police officers made an effort to locate the defendant the next day but failed to do so. He was arrested four days later, when he came in to inquire about the automobile, it being in police custody.
Two witnesses for the defendant testified that the latter had left the automobile in question at their garage to have some work done on a date which, so far as they could fix it, was February 19, the day before the automobile was apprehended; that the defendant left the premises before the mechanic, about closing time; that the next morning the automobile was missing and the defendant came out and demanded to know what had been done with the car; that the garageman did not report the disappearance of the car to the police. The defendant made a statement to the jury in which he denied having been in the automobile the night it was seized, but stated that he had left it at the garage for repairs and when he returned for it the next day it was missing; that he was unable to find a policeman to report the theft; that he intended to report it to the State Patrol, but received word that it was at the courthouse and, on going down there to investigate, was placed under arrest.
The defendant filed a motion for a new trial on the general grounds which was later amended by the addition of two special grounds, and the exception is to the judgment of the trial court overruling this motion.
1. The first ground of the amended motion for a new trial complains that the court, over objection to the question on redirect examination — "Mr. Arnold asked you the question of whether or not you ever arrested this boy for liquor, I will ask you if you have had some reports on him?" — permitted the State's witness to reply: "I have had reports about him in regard to his being connected with the liquor business. I have had numerous reports. The night before we arrested him, I had reports about him. The night we arrested him I had a report that this car was supposed to go to Washington, Georgia. I have never arrested him before this time, but I had had reports about him dealing in whisky." On cross-examination counsel for the defendant had asked the witness whether he had ever arrested the defendant for handling liquor, to which the witness replied in the negative. At the time that counsel objected to the question as to whether the police officer had received reports of the defendant being engaged in the liquor business, the court said, "Haven't you put his character in evidence?" to which counsel replied that he had put his character in evidence only as to liquor, whereupon the court ruled that he would confine the answer to reports of his reputation as to liquor dealings.
Counsel for the defendant in his brief contends that the testimony was objectionable as hearsay, and also on the ground that evidence as to character must be limited to general reputation rather than specific transactions. Insofar as the testimony is hearsay, it is admissible not to prove the truth of the averments therein but to show a matter of inducement as a result of which the officers chased down the defendant's automobile on the night in question, and in such case "it is better to admit the fact of the conversation but to exclude all the details and particulars of the same." Kelly v. State, 82 Ga. 441 (3) ( 9 S.E. 171). See also Phillips v. State, 206 Ga. 419 (3) ( 57 S.E.2d 555). Two other witnesses testified without objection that they were looking for the defendant on the night in question because of information received by them. Testimony, even though illegally admitted over proper objection, will not constitute reversible error where substantially the same testimony is later introduced without objection. See Code (Ann.), § 70-203, catchword, "Same evidence."
As to the objection on the ground that it was not the proper method of introducing evidence as to character, it appears to us that the question of defendant's counsel here as to whether the defendant had ever been arrested for liquor violations, where no objection is made, is equivalent to an inquiry as to his reputation for liquor violations. This was in fact conceded by counsel for the defendant during the trial of the case. As stated in McKenzie v. State, 8 Ga. App. 124 (2) ( 68 S.E. 622): "The rule which permits the prosecution to rebut evidence adduced for the purpose of proving the defendant's good character is not affected by the fact that the witness used for the purpose of showing good character was called to the stand by the State." This was the case here, and if we are correct in assuming that a question as to whether the defendant had ever been arrested for liquor violation was equivalent to inquiring as to his reputation in this regard, a question in rebuttal concerning the existence of reports about the defendant's conduct must also be construed as further inquiry into his reputation in regard to liquor transactions. The witness did not mention any specific report except the one which caused them to search for the defendant the night the whisky was found. As has been pointed out, other witnesses also testified that such information was received on that night.
The rule that it is not permissible, in rebuttal of evidence as to good character, to prove specific acts, except on cross-examination for the purpose of testing the witness's knowledge, or for impeachment, is recognized. Mimbs v. State, 189 Ga. 189 (2) ( 5 S.E.2d 770). However, the testimony complained of here is not error requiring the grant of a new trial.
2. The second ground of the amended motion for a new trial complains of the failure of the court to charge without request the law as to circumstantial evidence. The conviction does not rest entirely on circumstantial evidence, since the State's witness swore positively and directly that he recognized the defendant as the driver of the automobile in which the whisky was found, and recognized the automobile as one belonging to him. Where the conviction does not depend entirely upon circumstantial evidence it is not error to fail to charge this principle of law in the absence of request. Morris v. State, 51 Ga. App. 145 ( 179 S.E. 822); Banks v. State, 13 Ga. App. 182 ( 78 S.E. 1014).
3. Complaint is made that the court erred in charging the jury as follows: "I charge you a man cannot be guilty of transporting whisky unless he possesses it."
The indictment was in two counts, one for possessing and the other for transporting illegal liquor. The excerpt of the charge complained of was a correct instruction to the jury that if they found the defendant not guilty on the charge of possessing liquor, a verdict of guilty on the charge of transporting it would be illegal. It was not error as being argumentative, prejudicial, or an expression of opinion. This contention is without merit.
3. As to the general grounds, the defendant sought to prove that he was not the man driving his automobile at the time it was captured by the police with a load of liquor, on the ground that he had left it at a garage the previous night and that it had been stolen by some third party. This the defendant claimed happened the night before the car was seized and four days before he was arrested. He did not claim to have reported the theft to the police during this time, nor did the owner of the garage. A witness for the State not only testified positively that he identified the defendant as the driver of the automobile, but that he also stopped him the night before, around midnight, driving the same automobile, and searched the car and examined his driver's license. It was not disputed that the vehicle at the time it was apprehended was being used to transport 66 gallons of non-tax-paid liquor. The evidence was therefore sufficient to support the verdict of guilty as to both counts.
The trial court did not err in overruling the motion for a new trial.
Judgment affirmed. MacIntyre, P.J., and Gardner, J., concur.