Cherry v. State, 37246
| Decision Date | 16 July 1958 |
| Docket Number | No. 37246,No. 2,37246,2 |
| Parties | C. S. CHERRY v. The STATE |
| Court | Georgia Court of Appeals |
Syllabus by the Court
'The verdict was required by the evidence, and in such cases, even if there be error in the charge, it will not necessitate a new trial.'
The defendant was accused and tried for the illegal possession and sale of whisky in counts substantially as follows: Count 1 accused the defendant of having, controlling and possessing distilled spirits and alcohol which did not bear state revenue stamps, on May 3, 1956.
Count 2 accused him of the offense of misdemeanor in that he did engage in and sell distilled spirits and alcohol without first obtaining a license from the office of the State Revenue Commissioner, this selling having been done on May 3, 1956. Count 3 is the same as count 1 with the exception that the offense is alleged to have been committed on May 11, 1956. Count 4 is the same as count 2 with the exception of the date, the date alleged in count 4 being May 11, 1956. Count 5 is the same as counts 1 and 3 except the date alleged is February 1, 1957. Count 6 is the same as counts 2 and 4 except the date alleged is February 1, 1957.
All the counts make the dates of the offenses an essential ingredient of each count.
The defendant filed his application for the writ of certiorari based on the statutory grounds and four special grounds. The trial judge answered the petition for the writ. On the hearing the judge of the superior court overruled the certiorari. It is to this judgment that the defendant filed exceptions here.
The evidence developed on the trial shows substantially as follows: W. H. Henderson, a witness for the State, testified as to the plan and method by which he and other officers developed the State's case. He testified that he had been attempting to catch the defendant with liquor and finally succeeded in buying liquor from him. The raid on the defendant's premises resulted in the finding of 200 gallons of non-tax-paid liquor. The witness testified that he had been connected with a chartered organization known as the Antimoonshine League and that he came to Georgia to work for the State Revenue Department in order to gather evidence on the defendant and other illegal liquor operators.
Harold L. Wright testified that he was an investigator for the Alcohol Board at Raleigh, North Carolina and that in December 1956 he came to Georgia to make investigations and came in contact with the defendant and purchased from him twelve gallons of non-tax-paid whisky.
The defendant in his statement admitted selling the liquor to one of the witnesses and stated that he did it because the revenue agent had told him he would help make arrangements for the defendant to get a beer license. The defendant said, 'I took the money [for the liquor] * * * but I didn't make any profit off of it at all except that the boy gave me a pint of real whisky for my services.'
Wesley R. Asinof, Atlanta, for plaintiff in error.
Paul Webb, Sol.-Gen., John I. Kelley, Solicitor, Robert O'Neil, Hinson McAuliffe, Eugene L. Tiller, Atlanta, for defendant in error.
1. The defendant relies for a reversal upon the alleged incomplete charge to the jury on the subject of entrapment, and upon the general grounds.
(a) Insofar as the general grounds are concerned the evidence overwhelmingly supports the verdict as to each count.
(b) We will now discuss whether or not the record reveals an entrapment of the defendant. This court said in Sutton v. State, 59 Ga.App. 198, 200 S.E. 225: In this connection see also United States v. Wray, D.C., 8 F.2d 429. In Sutton v. State, supra, this court cited Dalton v. State, 113 Ga. 1037, 39 S.E. 468, and Edmondson v. State, 18 Ga.App. 233, 89 S.E. 189. In the...
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...Accardi v. United States, 257 F.2d 168, 173 (5th Cir. 1958); Bienert v. State, 85 Ga.App. 451, 454, 69 S.E.2d 300; Cherry v. State, 98 Ga.App. 107, 109, 104 S.E.2d 694; Sutton v. State, 59 Ga.App. 198, 200 S.E. 225; 22 C.J.S. Criminal Law § 45(1), p. 137; Anno. 55 A.L.R.2d 1322. When the of......
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McKibben v. State, 42714
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Keaton v. State
...State, 238 Ga. 59, 61, 230 S.E.2d 869 (1976). To the extent that Rucker v. State, supra, Sutton v. State, supra, and Cherry v. State, 98 Ga.App. 107, 104 S.E.2d 694 (1958) are in conflict with the views expressed herein, those decisions are hereby Judgment reversed. All the Justices concur.......