Bolden v. State, 34866

• Citation: 88 Ga.App. 871,78 S.E.2d 368
• Decision Date: 15 October 1953
• Docket Number: No. 34866,No. 2,34866,2
• Parties: BOLDEN v. STATE
• Court: Georgia Court of Appeals

Page 368

78 S.E.2d 368

88 Ga.App. 871

BOLDEN v. STATE.

No. 34866.

Court of Appeals of Georgia, Division No. 2.

Oct. 15, 1953.

SYLLABUS BY THE COURT.

1, 2. The evidence in this case was sufficient to authorize a jury to find that the defendant owned and operated the cafe in question, and was present there on a Sunday morning shortly before the place was raided, at which time the following violations of law were taking place: sale of tax-paid liquor without a retail liquor license; keeping a disorderly house; selling liquor on Sunday; permitting dancing in a public place on Sunday; and keeping open a tippling house on Sunday. The conviction of these offenses was, in consequence, authorized by the evidence.

3. The conviction of keeping a lewd house was not authorized by the evidence, where there was no evidence to show knowledge by the defendant that adultery or fornication was being permitted or indulged in on the premises.

4. The defendant was not a retailer within the contemplation of the Alcohol Control Act, Ga.L.1937, p. 103; Chapter 58-10 of the Code, and accordingly his conviction under the provisions of Code § 58-1027, making it illegal to permit the breaking open and drinking of packaged liquor on the premises, was not supported by evidence.

Googie Bolden, Sr., was by agreement tried in the City Court of Waycross simultaneously on several accusations, the gist of which was as follows: (1) violation of Code Ann.Supp. § 58-1026, requiring a retailer's liquor license for the sale of liquor in a wet county; (2) violation of Code Ann.Supp. § 58-1027, which makes it unlawful for retailers of liquor to allow the drinking of the contents of package liquor on the premises; (3) keeping a disorderly house, in violation of Code § 26-6103; (4) keeping a lewd house, in violation of Code § 26-6102; selling liquor on Sunday, in violation of Code § 58-1060; permitting dancing in a public place owned and operated by the defendant, in violation of Code § 26-6914; and keeping open a tippling house on Sunday, in violation of Code § 26-6105.

The defendant was convicted on each count of every accusation. A motion for new trial on the general grounds only was denied, and the exception is to this judgment.

Benjamin Smith, Benjamin Smith, Jr., Waycross, for plaintiff in error.

Joe Schreiber, Waycross, for defendant in error.

TOWNSEND, Judge.

1. It was the defendant's contention that, while he owned the premises on which the raid was made, he had leased it to the sister of Blanche Holmes, who was present at the time of the raid and who testified that she was operating the establishment for her sister and not for the defendant. Testimony for the State, however, showed that Blanche Holmes, when arrested, had on her person a considerable amount of money, which she said represented receipts of the business and which she wanted to turn over to the defendant personally, since it was his; that the defendant had taken out a cafe license and malt-beverage license on the establishment in his own name; that he had approached the sheriff several times since the raid to get the place reopened, and had also asked another witness to intercede with the sheriff to have it opened; that he was present for at least 15 minutes to a half hour shortly before the raid, and had been in the main room and behind the counter at that time, although he left before the officers arrived (the witness who saw him on that occasion further testifying that he only worked on Saturday nights, but had not seen him before that for about a year); that the raid occurred at about 2 a. m. on a Sunday morning, at which time over 90 people were in the main room, dancing, shouting, and talking loudly; that many of them were drunk; that there were empty beer and liquor bottles about the place, as well as cards and poker chips on tables; that there were some little outbuildings 35 or 40 feet back of the main building, in which the officers found three couples 'bedded up,' and that they arrested a number of people, and still others escaped.

In considering whether this evidence was sufficient to connect the defendant with the operation of the establishment, the testimony of Blanche Holmes was not objected to as hearsay. It nevertheless had no probative value as such, but the circumstances were sufficient to show that she, together with the defendant and others, were coconspirators in the operation of the premises, and her declaration that she was operating the enterprise for the defendant and the money thus obtained belonged to him was admissible, since it was made during the pendency of the conspiracy. Loomis v. State, 78 Ga.App. 336(2), 51 S.E.2d 33. As stated in Smith v. Nix, 206 Ga. 403, 57 S.E.2d 275, 276: 'Under the Revenue Tax Act to Legalize and Control Alcoholic Beverages and Liquors Code, Ann.Supp. § 58-1001 et seq. one cannot lawfully engage in the sale of alcoholic beverages and liquors by proxy, and without obtaining a license or permit as required by the statute.' These offenses are misdemeanors, and all who may be concerned in their commission are principals. Kinnebrew v. State, 80 Ga. 232, 5 S.E. 56; Carter v. State, 143 Ga. 632, 85 S.E. 884. Ordinarily, where one claims that he rented the premises to another, but did not know that such other intended to put it to illegal use, and did not himself participate therein, or aid and abet in the perpetration of the offense, it is entirely a jury question as to whether the defendant was in fact engaged, through others, in its commission. Moody v. State, 14 Ga.App. 523(4), 81 S.E. 588. There is sufficient evidence here to have authorized the jury to find that the relationship between the defendant and Blanche Holmes or her sister was not a bona fide lease arrangement, but that the defendant was actively participating in the...