Foster v. State

• Decision Date: 16 March 1945
• Docket Number: 30806.
• Citation: 33 S.E.2d 598,72 Ga.App. 237
• Parties: FOSTER v. STATE.
• Court: Georgia Court of Appeals

33 S.E.2d 598

72 Ga.App. 237

FOSTER v. STATE.

No. 30806.

Court of Appeals of Georgia, Division No. 1.

March 16, 1945

Rehearing Denied March 27, 1945.

Syllabus by the Court.

1. The evidence sustains the verdict.

2. (a) Evidence which otherwise may be inadmissible, in some instances becomes admissible in order to explain conduct which had been brought into question.

(b) Hope or fear which renders a confession inadmissible is that which some other person excites and not that hope or fear which originates in the defendant's own mind from seeds of his own planting.

The defendant was convicted in the criminal court of Fulton County before a judge and a jury for selling at retail alcoholic spirits without first obtaining a license from the State Department of Revenue. He procured the sanction of a writ of certiorari. At the hearing the judge of the superior court overruled the certiorari. This judgment is assigned as error here.

M. L Snelling, a witness for the State, testified substantially as follows: That he was a law enforcement officer of the Revenue Department; that on April 23, 1944, a raid was made at Mr Foster's personal home; that the officers found a quantity of whisky, not only at his home, but at two other places operated by him; and that the defendant claimed responsibility for the whisky.

D. W Faircloth testified that he was a law enforcement officer of the Department of Revenue; that he knew the defendant and that on or about April 23, 1944, in the City of Atlanta, he contacted the defendant and asked him for a pint of whisky; that the defendant referred the witness to the defendant's house on Alexander Street, off Marietta Street; that the witness contacted the defendant at the corner of Marietta and Alexander Streets; that the defendant told him to go to his house and tell a girl, 'Ruth or Claire,' that he sent him there for a pint of whisky; that he went to the defendant's house as thus directed by the defendant and procured from 'Claire' two pints of Yellow Stone Bonded Whisky for $5.

L. Sumner testified that he was an officer from the Revenue Department, Alcoholic Unit, and was present when the defendant was arrested and heard him make a statement; that he had in his possession three search warrants for the three houses searched; that the officers found three cases in the defendant's house, five cases in his mother's house, and three or four cases in the other house; that the defendant said all of the whisky was his, 'not to lock up anyone but himself, that he was fully responsible for all three houses, he operated all three houses. * * * that all the liquor was his in all three houses; that [the defendant] made this statement freely and voluntarily without any hope of reward or fear of punishment. The defendant had no license to retail liquors.

The defendant introduced no evidence and made no statement.

John F. Echols, of Atlanta, for plaintiff in error.

E. E. Andrews, Sol. Gen., Lindley W. Camp, Sol., and Durwood J. Pye, all of Atlanta, for defendant in error.

GARDNER, Judge.

The defendant assigns error on the general grounds and on several special grounds, all of which we will deal with in the order presented.

1. Under the evidence as above set forth there is no merit in the assignments of error under the general grounds.

2. (a) The first special ground assigns...