Carswell v. State

• Decision Date: 10 December 1909
• Docket Number: (No. 2,244.)
• Citation: 66 S.E. 488,7 Ga.App. 198
• Parties: CARSWELL. v. STATE.
• Court: Georgia Court of Appeals

(7 Ga.App. 198)

66 S.E. 488

CARSWELL.

v.STATE.

(No. 2, 244.)

Court of Appeals of Georgia.

Dec. 10, 1909.

1. Intoxicating Liquors (§ 236^*) — Sufficiency of Evidence—Sale of "Liquor."

Generally the word "liquor" implies intoxicating liquor, and therefore proof that a defendant sold "liquor" is sufficient to show, in th* absence of adverse testimony, that he sold intoxicating liquor. Especially is this true where the proof further shows that it looked like rye whisky.

[Ed. Note.—For other cases, see Intoxicating Liquors, Cent. Dig. § 316; Dec. Dig. § 236.*

For other definitions, see Words and Phrases, vol. 5, pp. 4180-4182.]

2. Intoxicating Liquors (§ 233*)—Criminal Law (§§ 368, 419, 420*)—Admissibility of Evidence;—Hearsay—Res Gestae.

The exceptions to testimony are controlled by the decision of this court in Taylor v. State, 5 Ga. App. 237, 62 S. E. 1048, and Douglas v. State, 6 Ga. App. 157, 64 S. E. 490, and by the provisions of Pen. Code 1895, §§ 997, 998.

[Ed. Note.—For other cases, see Intoxicating Liquors, Cent. Dig. §§ 293-297; Dec. Dig. § 233;* Criminal Law, Cent. Dig. §§ 806. 812, 815, 821, 973-983; Dec. Dig. §§ 368, 419, 420.*]

3. Sufficiency of Evidence.

The evidence fully authorizes the verdict. (Syllabus by the Court.)

Error from City Court of Sandersville; E. W. Jordan, Judge.

Henry Carswell was convicted of an unlawful sale of intoxicating liquor, and he brings error. Affirmed.

Hardwick & Wright, for plaintiff in error.

A. W. Evans, Sol. pro tern., for the State.

POWELL, J. 1. The defendant was convicted upon an.indictment charging him with the illegal sale of intoxicating liquor. The first point he makes is that the evidence is insufficient, in that the witnesses, in testifying to the sale, spoke of purchasing "liquor, " but did not say that it was "intoxicating liquor." The state's main witness said: "I bought a half pint of liquor." Further on in the testimony he describes the liquor he bought by saying: "It looked like rye whisky." It is true that the word "liquor" has more than one meaning, and that in the broad sense it includes any liquid or fluid substance, such as water, milk, blood, etc.; but it also has the special sense and meaning of an intoxicating beverage. The Century Dictionary, after giving the general meaning, gives also the definition: "A strong or active liquor of any sort. Specifically—an alcoholic or spirituous liquid, either distilled or fermented; an intoxicating beverage; especially, a spirituous or distilled drink, as distinguished from fermented beverages, as wine and beer." Further on in this definition is cited a quotation from Shakespeare (Hamlet, v, 1. 68): "Fetch me a stoup of liquor." It Is said in the discussion of the definition that "the word used absolutely has meanings differing according to the industry in which it is used." It will be remembered that the word was used in the present context in relating to the prosecution for the sale of intoxicating liquor. The witness manifestly was not speaking of milk, water, or blood, and It is not likely that any one—judge, jury, or counsel—thought that he was using the word in any such general sense; and we will not attach any such factitious meaning to his language. In the case of State v. Brittain, 89 N. C. 574, 576, the court said that most generally the term "liquor" implied spirituous liquors, and therefor that proof that a defendant sold liquors is sufficient to show, in the absence of adverse testimony, that he sold spirituous liquors. See, also, to the same effect, Brass v. State, 45 Fla. 1, 34 South. 307, 308; Houser v. State, 18 Ind. 106; Dolan v. McLaughlin, 46 Neb. 449, 64 N. W. 1076, 1078; Hollender v. Magone, 149 U. S. 586, 13 Sup. Ct. 932, 37 L Ed. 860.

2. The witness Jim Smith had testified that he bought the liquor from the defendant at the latter's house. The state offered the testimony of another witness, Joe Harden, who had gone with the witness Smith to the defendant's house, but had not gone in; that Jim went in and stayed a little while, andthat when he came back he had some whisky; and that, if he had any whisky before he went in Carswell's house, the witness did not see it. The defendant objected to this testimony on the ground of irrelevancy; but the objection was overruled. The testimony was not without probative value, and was properly admitted. So, too, there is an objection that the court allowed still another witness to testify that he went with a girl to the defendant's house one night, and that the reason he went with her was that she told him she could buy some liquor there; that, when they got there, the girl went around the back way and went In, and that she soon afterwards came out with some liquor; that he gave her 50 cents to buy the liquor with; that he gave her the money, because she said she could buy some liquor there; that h...