Bobo v. State

• Citation: 112 S.E.2d 679,101 Ga.App. 48
• Decision Date: 19 January 1960
• Docket Number: No. 38069,No. 2,38069,2
• Parties: Lester BOBO v. STATE
• Court: Georgia Court of Appeals

Page 679

112 S.E.2d 679

101 Ga.App. 48

Lester BOBO v. STATE.

No. 38069.

Court of Appeals of Georgia, Division No. 2.

Jan. 19, 1960.

Fullbright & Duffey, Harl C. Duffey, Jr., Rome, for plaintiff in error.

Chastine Parker, Sol., Rome, for defendant in error.

Syllabus Opinion by the Court

CARLISLE, Judge.

1. Lester Bobo was charged in the City Court of Floyd County in a special accusation with the possession of nontax-paid whisky on August 14, 1959. The officers testified that they observed the house wherein the defendant resided for some time and that the defendant, whom one of the officers positively identified, came out of his house and out the back gate onto an old railroad bed, or right of way, and stooped down, 'scratched around' and opened a trap buried in the ground which was located nine feet from the defendant's back gate and off the property rented by him, that he took therefrom a 1/2--gallon jar containing whisky; that when the officers approached, the defendant ran back into his house, and that the officers found 57 gallons of nontax-paid whisky, all in half-gallon fruit jars, buried in the trap. The evidence thus adduced was sufficient to directly connect the defendant with the whisky, to authorize the finding of 'guilty,' and the finding of the jury that the defendant was guilty as charged was not wholly dependent on circumstantial evidence.

2. Special ground 1 complains because the trial court failed to charge without request on the law of circumstantial evidence as embodied in Code § 38-109. The conviction in this case did not depend wholly on circumstantial evidence, and failure of the court to charge in this regard was not, therefore, error. Acker v. State, 78 Ga.App. 819, 820(e), 52 S.E.2d 559; King v. State, 86 Ga.App. 786(1), 72 S.E.2d 502.

3. Special grounds 2, 3 and 4 complain because the trial court charged in substance the provisions of § 11(c) of the Revenue Tax Act to Legalize and Control Alcoholic Beverages and Liquors (Ga.L.1937-38, Ex.Sess., pp. 103, 117; Code (Ann.) § 58-1056 and the provisions of that portion of the first paragraph of § 11 respecting the duty of the Revenue Commissioner to prescribe suitable stamps and the duty of manufacturers and wholesalers to affix the stamps to the containers of whisky, which provisions are embodied in Code (Ann.) §§ 58-1050 and 58-1051. The argument and contention with regard to these portions of the charge is that they were confusing and misleading to the jury because they inferred that the Revenue Commissioner had made a provision for such stamps when there was no evidence in the record that any such provision had been made, and that the latter portion excepted to was erroneous because it did not appear from the evidence that the defendant was a manufacturer, distiller or wholesaler. The contention made in these grounds that the Revenue Commissioner has a discretion, or an alternative, method of collecting the tax than by stamps is not justifed by the wording of the act. This contention is based on the phrase, 'or in a manner as may be prescribed by the Revenue Commissioner,' but this wording refers to whether the stamps required shall be lithographed or by some other method imprinted on the paper.

(a) 'There is a legal presumption, until the contrary appears, that a public officer has regularly and properly performed his official duty. Fine v. Dade County 198 Ga. 655, 663, 32 S.E.2d 246.' Southern Airways Co. v. Williams, 213 Ga. 38(3), 96 S.E.2d 889, 891. The requirements of § 11 of the Revenue Tax Act to Legalize and Control Alcoholic Beverages and Liquors that the Revenue Commissioner provide suitable stamps for denoting the payment of taxes and the requirements that the stamps be affixed by the manufacturer, distiller or wholesaler are mandatory, and in the prosecution of one charged with possessing nontax-paid whisky, the evidence that the defendant was in possession of a quantity of whisky...