Burke v. State, 25553.

• Decision Date: 15 September 1936
• Docket Number: No. 25553.,25553.
• Citation: 187 S.E. 614,54 Ga.App. 225
• Parties: BURKE. v. STATE.
• Court: Georgia Court of Appeals

54 Ga.App. 225

187 S.E. 614

BURKE.

v.STATE.

No. 25553.

Court of Appeals of Georgia, Division No. 1.

Sept. 15, 1936.

Syllabus by the Court.

1. Evidence that a place where whisky is found has the "reputation" of belonging to the defendant on trial for illegally possessing said whisky is hearsay and inadmissible in evidence, and is without probative value when admitted without objection.

2. The evidence in this case did not exclude every other reasonable hypothesis save the guilt of the accused, and the court erred in overruling the general grounds of the motion for new trial.

Error from City Court of Millen; L. P. Strickland, Judge.

Robert Burke was convicted of possession of alcoholic beverages, and he brings error.

Reversed.

H. A. Boykin, of Sylvania, for plaintiff in error.

D. A. Bragg, Sol., of Millen, for the State.

MacINTYRE, Judge.

The special presentment found at the May term, 1935, of the superior court of Jenkins county charges that on April 24, 1935, Robert Burke had, possessed, and controlled alcoholic, vinous, and malt beverages, contrary to the laws of Georgia. On May 24, 1935, this presentment was transferred to the city court of Millen, and on October 21, 1935, the defendant was found guilty of the offense charged. The exception is to the judgment overruling his motion for new trial containing the general and two special grounds. With a search warrant for "Robert Burke's place, " J. L. Taylor, a deputy sheriff, searched a place near Buck-head in Jenkins county, and found there seventy-five pints of whisky and several cases of beer. This occurred on April 24, 1935. The defendant was not there when the officer entered the place, and the search warrant was served on Petefoot, who was in the place of business. Olin Burke was there also. The defendant came in while the whisky was being removed from the shelves, but raised no objection to its being moved, and neither then, nor at any other time, did or said anything to indicate that the whisky or beer was his. Petefoot said, "We will give bond and hold the liquor, " but "didn't say who 'we' were." Taylor also testified that at the November term, 1935, of the superior court, "there was a petition brought against * * * Robert Burke, to close out that place as being his, " and that upon the hearing the defendant swore "that was his place of business." It is fairly deducible from the record that Taylor swore that the defendant testified that said place of business was his, approximately two months after the time said beer and whisky were found on April 24, 1935. The evidence was objected to on the ground that "the defendant was being tried for something that happened on April 24, 1935, and the solicitor was seeking to inject some * * * proceeding that oc-curred in November." The court admitted the evidence as "a circumstance which the jury might consider in determining whether it was his place of business at that time."

In the main, the testimony of E. C. Breedlove, another deputy sheriff, was the same as that of the witness Taylor. Breedlove swore, in part: "I do not know whether Eddie Coleman has any interest, nor Olin Burke has any, nor whether or not Petefoot owns it all. From the reputation of the place, it belongs to Robert Burke. I do not know of my own knowledge. I do not know whether Eddie Coleman has that place leased for five years. I do not know who owned that liquor, nor that beer. I just know it was found out at the place that had the reputation of belonging to Robert Burke." (Italics ours.) Sheriff M. G. Johnson testified, in part: "Mr. Robert Burke has never approached me since I got that liquor, * * * for the return of the liquor. He has never asked me for it. I just thought it was his. I could not swear positively it was his." Over the same objection offered when the witness Taylor testified, this witness was allowed to testify: "Such a petition was brought. * * * I do not recall Mr. Robert Burke testifying in the case. I do know that there was a petition brought, and an order to close it up as Robert Burke's place of business."

We hold that the court did not err in allowing the witness Taylor to testify, over the objection interposed, that the defendant swore that the place in question was his, approximately two months after the beer and whisky were found there. We are also of the opinion that the admission of the testimony of the sheriff, referred to above, is no cause for reversing the case. In this connection, see Hayes v. State, 36 Ga.App. 668, 137 S. E. 860, where this court cited numerous authorities to sustain the following ruling: "In a prosecution for possessing intoxicating liquor it is not error to admit evidence...