Booker v. State

• Decision Date: 29 October 1934
• Docket Number: No. 24111.,24111.
• Citation: 50 Ga.App. 66,176 S.E. 917
• Parties: BOOKER. v. STATE.
• Court: Georgia Court of Appeals

50 Ga.App. 66

176 S.E. 917

BOOKER.

v.STATE.

No. 24111.

Court of Appeals of Georgia,

Division No. 1.

Oct. 29, 1934.

Syllabus by the Court.

1. The evidence amply supports the verdict, and it having the approval of the trial judge and no error of law being shown, this court is powerless to interfere.

2. It is apparent that the alleged newly discovered evidence is, in the main, cumulative and impeaching. It is all of such character that it is obvious that by the exercise of ordinary diligence it could have been discovered before the trial; the allegation in the affidavit of counsel that such diligence was used being itself a conclusion, the discretion of the trial judge in refusing a new trial will not be controlled. Penal Code 1910, § 1088; Smith v. State, 7 Ga. App. 690, 67 S. E. 842; Orr v. State, 5 Ga. App. 76, 62 S. E. 676; Cadwalader v. Fendig, 137 Ga. 140, 72 S. E. 903; Atlanta Rapid Transit Co. v. Young, 117 Ga. 349, 43 S. E. 861; Goodman v. State, 122 Ga. 111, 49 S. E. 922.

Error from Superior Court, Morgan County; James B. Park, Judge.

Robert Booker was convicted of manufacturing intoxicating liquors, and he brings error.

Affirmed.

E. H. George, of Madison, for plaintiff in error.

C. S. Baldwin, Jr., Sol. Gen., of Madison, for the State.

GUERRY, Judge.

Robert Booker, the defendant in this case, was indicted jointly with Clinton Baugh and George Sanford, for the offense of manufacturing intoxicating liquors. Asserting his innocence upon the trial, he pleaded not guilty. The jury returned a verdict of guilty. The evidence disclosed that around midnight two witnesses for the state raided a still that was in full operation. They testified positively that Robert Booker, the defendant, was seen in front of the furnace, holding a lighted lantern while his confederates were capping the still; that the furnace was fired and whisky was being made; that they got within thirty yards of the still and stood there several minutes watching the operationthereof; that they recognized the defendant and two others. One testified: "I slipped up in 30 steps of the still and recognized this boy [the defendant] and two others, Robert Clinton and George. They had a fire in the furnace and a lantern. * * * Robert [the defendant] was holding the lantern, and the other two gapping the still. * * * When I first went down to them I readily recognized them. * * * I knew these boys at the time. * * * Yes, I could recognize people 75 feet away by lantern light and the light of the furnace, I watched them some little bit until I recognized them." The other testified: "I raided the still with Mr. Booth on the night of February 19. I saw Robert [the defendant], Clinton, and George Sanford. I am sure I saw Robert Booker. They were making whisky. Mr. Booth first went down the path, and then came back and got me, and he goes around. I went to where Mr. Booth was, and, when I got there, I saw Robert holding a lantern, and it seems the other boys were capping it or maybe the cap blew off. * * * Robert was standing in from [front?] of the furnace." The main witnesses for the defendant were his alleged confederates, who at the trial swore that they were guilty of making whisky and were at the still the night it was raided by the officers, although they had previously pleaded not guilty to such charge. They testified that the defendant was not present and had nothing to do with the liquor.

There are only the usual general grounds of the motion for new trial. It is, undoubtedly, not to be questioned that if the defendant was actually present at the still, helping and furthering the ultimate end of making intoxicating liquor by means necessary to its performance, as witnesses for the state swore, he would have been guilty, and the jury would have been authorized to find him guilty of such offense. Learned counsel for the...