Garrett v. State, 31579.

• Decision Date: 03 September 1947
• Docket Number: No. 31579.,31579.
• Citation: 44 S.E.2d 153
• Parties: GARRETT. v. STATE.
• Court: Georgia Court of Appeals

44 S.E.2d 153

GARRETT.

v.STATE.

No. 31579.

Court of Appeals of Georgia,

Division No. 2.

Sept. 3, 1947.

Syllabus by the Court.

1. "The term 'bootlegger' denotes one who engages in the illegal sale or handling of intoxicating liquor in territory where its sale is prohibited, and is not restricted to one who peddles liquor."

2. In his argument to the jury, the solicitor referred to the defendant as a bootlegger. The defendant moved the court to direct the solicitor to refrain from referring to the defendant as a bootlegger, which the court refused to do. The defendant then made a motion for mistrial which was overruled and later requested the court in writing to instruct the jury to disregard the remarks, which request was refused. The inference drawn by the solicitor that the defendant was a bootlegger was properly sustained by the evidence, and the court did not err in not expressing his disapproval of the argument of the solicitor in referring to the accused as a bootlegger.

3. The statement of the solicitor in his argument to the effect that the defendant was operating a black market in whiskey was improper since there was no evidence in the case which authorized any such inference or conclusion, and the statement brought in extraneous matters as if they were a part of the case which had no basis in the evidence. The defendant made a motion for mistrial on account of such improper statement, which was overruled, and later requested the judge in writing to instruct the jury in his general charge to disregard the remarks, which request was refused. The judge having taken no corrective measures relative to such improperargument, it was reversible error to refuse a new trial after a verdict of conviction.

Error from City Court of Sylvester; C. W. Monk, Judge.

Ed Garrett was convicted of selling whisky, and he brings error.

New trial granted.

Williamson & Crowe, of Sylvester, for plaintiff in error.

Joe L. Houston, Sol., of Sylvester, for defendant in error.

MacINTYRE, Presiding Judge.

Ed Garrett was indicted for the offense of selling whiskey. The jury returned a verdict of guilty, and the defendant made a motion for new trial based on the general and two special grounds. This motion was overruled on each and every ground thereof, and the defendant excepted.

In his concluding argument to the jury, the solicitor made the following remarks: "These bootleggers know the automobiles driven by the Alcohol Tax Agents as well as they know the car of the sheriff here. Ed Garrett knew these cars and if the agent had used his car in going to Garrett's home, Garrett would have recognized it. All these bootleggers knew their cars. Hudson [Sheriff of Worth County] couldn't catch him selling whiskey because Garrett wouldn't sell to Hudson. Garrett knew their cars too well." The defendant moved the court to direct the solicitor to refrain from referring to the defendant as a "bootlegger." The court replied, "Go ahead with the argument Mr. Houston [solicitor]." The defendant then made a motion for mistrial which was overruled, and later requested the court in writing to instruct the jury in his general charge to disregard the remarks.

The solicitor continued his argument and made the following remarks: "Yes, gentlemen of the jury, I said all these bootleggers knew the cars of these officers, and further than that, he is out there operating a black market in whiskey charging folks outrageous prices far beyond OPA ceiling price." At this point the defendant made another motion for mistrial. The trial judge replied, "The jury will recall what the evidence is and will get the evidence from the witness stand and not from anything counsel says here. I overrule the motion."

The solicitor then stated to the jury: "Gentlemen of the jury, I said he was selling above ceiling price. I think anybody knows that $4.50 for a pint of Old Thompson is above the ceiling, and * * *" The defendant again moved for a mistrial, and the motion was overruled.

It is insisted by the defendant that the court erred in declining to declare a mistrial in each of the three instances shown above. We shall consider first the remarks of the solicitor in which he stated: "These bootleggers know the automobiles driven by the Alcohol Tax Agents. * * * All these bootleggers knew their cars. * * *"

1. As stated in Jones v. State, 166 Ga. 251, 142 S.E. 866, 868, "No proposition is better established in our practice than that counsel cannot introduce new facts in argument not brought out in the evidence * * * "Anything not legitimately arising out of the trial of the case, which tends to destroy the impartiality of the juror, should be discountenanced. Whether beneficial to the state or to the accused, such things, upon the ground of irrelevancy, should be suppressed and not given the opportunity of influencing the minds or exciting the passions of the jurors. Verdicts should be the result of calm deliberation, founded upon the law and evidence. The accomplishment of that object can never be assured where irrelevant things which tend to destroy the impartiality of the jurors are allowed to creep into the trial." Styles v. State, 129 Ga. 425, 429, 59 S.E. 249, 12 Ann.Cas. 176.

In Owens v. State, 120 Ga. 209(3), 47 S.E. 545, it is said: "While counsel should not be permitted in argument to state facts which are not in evidence, it is permissible to draw deductions from the evidence, and the fact that the deductions may be illogical, unreasonable, or even absurd, is matter for reply by adverse counsel,...