Fitzgerald v. State

• Court: Georgia Court of Appeals
• Citation: Fitzgerald v. State, 51 Ga.App. 636, 181 S.E. 186 (Ga. App. 1935)
• Decision Date: 26 July 1935
• Docket Number: 24776.
• Parties: FITZGERALD v. STATE.

181 S.E. 186

51 Ga.App. 636

FITZGERALD v. STATE.

No. 24776.

Court of Appeals of Georgia, First Division

July 26, 1935

Rehearing Denied Aug. 15, 1935.

Syllabus by Editorial Staff.

In prosecution for possessing whisky, evidence that accused possessed whisky on other occasions before and after date of offense charged in accusation held admissible.

Prosecuting attorney has right, within proper bounds, to discuss and criticize accused's statement, although he has no right to criticize accused's failure to make statement.

In prosecution for possessing whisky, charge that person who takes up glass of whisky in his hand for purpose of drinking from it is in possession and control of whisky held not error.

Error from City Court of Macon; Earl W. Butler, Judge.

Jesse Fitzgerald was convicted of possessing whisky, and he brings error.

Affirmed.

Feagin & Feagin, of Macon, for plaintiff in error.

Oscar L. Long, Jr., Sol., of Macon, for the State.

Syllabus OPINION.

BROYLES Chief Judge.

1. In a prosecution for possessing whisky, it is not error to admit evidence showing, or tending to show, that on other occasions, both before and after the date of the offense charged in the accusation, the defendant possessed whisky. Such evidence is relevant to show intent or motive, and as showing circumstances corroborative of the evidence relating to the transaction charged in the accusation upon which the defendant is being tried. Jones v. State, 32 Ga.App 7, 122 S.E. 738; Ealey v. State, 40 Ga.App. 727, 151 S.E. 400, and citations. Applying the foregoing ruling to the facts of the instant case, special grounds 1, 2, and 3 of the motion for a new trial are without merit.

2. Under the facts of the case the court did not abuse its discretion in overruling the defendant's motion to declare a mistrial and to rebuke the solicitor because of his alleged improper argument to the jury in which he criticized the statement made by the defendant to the jury. A prosecuting attorney has the right to discuss and criticize within proper bounds, a defendant's statement, although he has no right to criticize the defendant's failure to make any statement at all.

3. The following excerpt from the charge was not error: "I charge you that if a person takes up a glass of whisky in his or her hand for the purpose of drinking from it, that person is in possession and control of the liquor." Wright v. State, 48 Ga.App. 783, 173 S.E. 442, 443.

4. The excerpt from the charge wherein it was explained to the jury why evidence as to other similar whisky transactions was admitted, and that the defendant could not be convicted on or for those transactions, was not erroneous for any reason assigned.

5. It is unnecessary to pass on the general grounds of the motion for a new trial, since counsel for the plaintiff in error concede in their brief that the verdict was authorized by the evidence.

Judgment affirmed.

MacINTYRE and GUERRY, JJ., concur specially.

MacINTYRE Judge (concurring specially).

It seems to me that under the general prohibition law of Georgia it is entirely immaterial with what intent the defendant possesses intoxicating liquor. Cohen v. State, 7 Ga.App 5, 65 S.E. 1096; Klug v. State, 77 Ga. 734 (5). It is true, however, that he must knowingly have, control, or possess it. Under the facts of this case, in order to rebut a defense based upon evidence, which...