Anderson v. State
| Decision Date | 04 May 1945 |
| Docket Number | 30856. |
| Citation | 34 S.E.2d 110,72 Ga.App. 487 |
| Parties | ANDERSON v. STATE. |
| Court | Georgia Court of Appeals |
Rehearing Denied May 23, 1945.
Syllabus by the Court.
1. The verdict was authorized by the record, from any viewpoint.
2. An order overruling a plea of challenge to the array of jurors can not be made a ground in a motion for a new trial.
3. Where, in a challenge to the polls, the juror on the voir dire qualifies in response to the statutory questions propounded to him, he is rendered prima facie competent. To overcome this presumption of the competency of the juror aliunde evidence is necessary. In such event the trial judge becomes the trior of the juror's competency.
4. Ordinarily, one who acts in the capacity of a peace officer or connected therewith will not be required by the courts to disclose the name of their informants concerning a crime for which an accused is being tried. This rule rests upon sound public policy.
The defendant was convicted in DeKalb County superior court of unlawfully controlling and possessing nontax-paid whisky. He filed his motion for a new trial on the general grounds and thereafter amended his motion by adding three special grounds. The court overruled the motion. The defendant assigns error on this judgment. It appears that at the time of the alleged crime the defendant was and had been for several years a member of the county police force. The affairs of DeKalb County were, at the time, under the control of a sole commissioner Honorable Scott Candler. The commissioner was informed that the accused had stored on the defendant's premises a quantity of tax-unpaid spirituous liquors. The commissioner procured the services of two members of the Georgia Bureau of Investigation. When the investigators arrived in Decatur, Georgia, they went into conference with the chief of the county police force. The defendant at that time was on patrol duty. He was called in over the radio communications system. When the defendant arrived in response to the call, he was under the influence of intoxicating liquors, to some extent. Being informed of the purpose for which he was recalled, he denied that there was any liquors stored on his premises. The chief of the county police force, the two investigators, and the defendant, went to the home of the defendant. After arrival there a search was made of the defendant's dwelling house and barn. Within about 50 feet of the defendant's dwelling was his smokehouse or storage room. This storage room was locked. Inquiry was made as to the key, whereupon the defendant stated that he did not know where the key was, and he gave his word of honor, holding up his hand, that there was nothing in the storage room except some canned fruit and meat belonging to the defendant's wife, and some other immaterial articles. The defendant was then informed that the officers had information that the whisky was stored in that particular storage room and that unless he produced the key they would force the door open. Thereafter the defendant returned to his dwelling house and produced the key by means of which the door to the storage room was unlocked. The officers found 186 gallons of tax-unpaid distilled liquors, in half gallon fruit jars, or 31 cases of 12 half-gallons to the case. After the whisky had been discovered, the chief testified: 'When I found the whisky I asked him if he could explain why it was there, and he said not to ask him any questions, and I told him By God, this is too much whisky here, and you say, 'Don't ask me any questions,' and he said, 'If you don't ask me any more questions, I don't have to answer.''
The record reveals, in behalf of the defendant, that the defendant's brother lived approximately 300 feet from the defendant's home. The brother had used the storage room and had a key. The brother had been in the armed services for two years. He had spent the week-end at his home on Labor Day, in 1944, and had spent three days at home in August of the same year, when his mother died. The defendant also submitted his general reputation for good character. The defendant in his statement submitted that his brother had been using the storage room for four or five years; that the defendant knew nothing of the whisky being there; that somebody put the whisky there when the defendant and his wife were away.
Young H. Fraser, of Atlanta, for plaintiff in error.
Roy Leathers, Sol. Gen., of Decatur, for defendant in error.
1. As to the general grounds, the evidence amply sustains the verdict. It was argued that the whisky could have been 'planted.' The jury very well could have reasoned that anyone wishing to 'plant' whisky would not have sown so abundantly for such a contemplated harvest; that a much smaller quantity would have produced the same yield. While it is true also that the defendant submitted his general reputation for good character, and those who knew him sustained him in this regard, a reputation for good character is a substantive fact and may within and of itself be sufficient to create in the minds of the jury a reasonable doubt as to a defendant's guilt, nevertheless, if a jury should believe a defendant guilty beyond a reasonable doubt, it is their duty to convict him notwithstanding evidence as to his good character. General reputation for good character which the law contemplates is what the public in the community in which the defendant lives, say about him. His real character is locked within his own bosom. It may, perhaps, be that the jury concluded that the key which unlocked the storage room unlocked the view as to the defendant's real character of which his neighbors knew nothing. At any rate, whether the jury reached their verdict by this process of calculation or some other, from the record they were warranted in returning a verdict of guilty. This being so, this court is without authority to disturb it.
2. When the defendant was called on to plead to the indictment he filed a challenge to the array of the jurors empaneled to try him. The court, after hearing evidence, overruled this plea on November 22, 1944. His conviction bears the same date. There were no exceptions pendente lite to the overruling of the defendant's challenge to the array. The defendant's motion for a new trial was overruled on February 23, 1945. His bill of exceptions to the overruling of his motion for a new trial was presented and signed on March 2, 1945. The exception to the judgment overruling the plea of the challenge to the array is made in the motion for a new trial in the first amended ground thereof. Rulings on a challenge to the array of jurors empaneled to try a defendant are on preliminary pleas in the nature of a demurrer, a plea in abatement, and a motion to change the venue, and are not proper grounds for a new trial. In the case of Hargroves v. State, 179 Ga. 722, 723, 177 S.E. 561, 562, the Supreme Court said: See also Mattox v. State, 181 Ga. 361(1), 182 S.E. 11, and cases cited therein. It will thus be seen that the judgment of the court overruling and denying the plea of challenge to the array was made more than 20 days from the presenting and signing of the bill of exceptions overruling the motion for a new trial. This is jurisdictional and the court has no authority to consider the order overruling the plea in abatement.
3. The September term of the superior court of DeKalb County convened on September 4, 1944, after the defendant had been apprehended. The grand jury did not indict the defendant. They filed their presentments and dispersed. The petit jury was discharged for the term. Thereafter, the judge reconvened the grand jury and reminded them that they had a right to consider the case against the defendant even though the city court of Decatur had jurisdiction of the offense. The grand jury returned an indictment against the defendant for the offense for which he was convicted. The sheriff, without consulting the court, accepted a bond for the appearance of the defendant, returnable to the first Monday in December, 1944, the December term of court. The condition of the bond was that the accused be and appear at the December term of court. The bond was for $1000. The court called a special term to convene on October 26, 1944. On this date the court convened. The case was called and the defendant did not answer. The attorney for the accused was present and stated to the court that the...
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