Burchfield v. State, (No. 19998.)

• Decision Date: 12 November 1929
• Docket Number: (No. 19998.)
• Citation: 40 Ga.App. 506,150 S.E. 459
• Parties: BURCHFIELD . v. STATE.
• Court: Georgia Court of Appeals

40 Ga.App. 506

150 S.E. 459

BURCHFIELD .

v.STATE.

(No. 19998.)

Court of Appeals of Georgia, Division No. 1.

Nov. 12, 1929.

(Syllabus by the Court.)

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

John Burchfield was convicted for manufacturing whisky, and he brings error. Reversed.

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

Jos. B. Duke, Sol. Gen., of Eatonton, for the State.

BLOODWORTH, J. The record in this case shows that certain officers raided a distillery where they found five men. One of the officers (Ivey) swore that "fire was in the still, full of beer, whisky running"; that "the still was in full operation, nothing to be done at that time, and nobody was at work. They were talking and the whisky running"; that he "crawled up behind three of the defendants, who were sitting right at the still on a raised place"; that he caught one of them (Jacobs) before they knew he was there; that the defendant, Burchfield, "jumped up and started off, but I pulled him back. He started again. I told him twice to stop. * * * He didn't run. He was trying to walk away or I would not have pulled him back." The defendant was convicted and filed a motion for a new trial, and when this was overruled he excepted.

This case is controlled by the principle announced in Griggs v. State, 25 Ga. App. 242, 243, 102 S. E. 877, 878, where it was said: "The most that can be said of it is that it shows 'presence' and 'flight.'" In Griffin v. State, 2 Ga. App. 534(2), 58 S. E. 781, it was held: "Neither presence nor flight, nor both together, without more, is conclusive of guilt." See Benjamin v. State, 16 Ga. App. 376, 377, 85 S. E. 349. The facts of this case differentiate It from the case of Chapman v. State, 38 Ga. App. 345, 143 S. E. 923, cited by defendant in error. In this case it is doubtful if "flight" of the defendant was shown by the evidence. One of the defendants swore: "I made no effort to run that night, nor did Burchfield to my knowledge. I did not see Ivey catch Burchfield and pull him back." Without flight having been established by the evidence, the conviction of the defendant was unauthorized. In Smith v. State, 14 Ga. App. 612, 81 S. E. 817,-818, it was said: "The mere fact of flight alone, as held by this court in Griffin v. State, 2 Ga. App. 534, 58 S. E. 781, is not an incriminatory circumstance of sufficient probative value of itself to authorize conviction for crime." In the instant case the record shows that two others of the five who were present at the scene of. the crime were indicted for manufacturing whisky at that time and place,...