Harvill v. State

• Decision Date: 26 July 1922
• Docket Number: 13612.
• Citation: 113 S.E. 219,29 Ga.App. 68
• Parties: HARVILL v. STATE.
• Court: Georgia Court of Appeals

113 S.E. 219

29 Ga.App. 68

HARVILL v. STATE.

No. 13612.

Court of Appeals of Georgia, First Division

July 26, 1922

Syllabus by the Court.

One of the special grounds of the motion for a new trial alleges that the court erred in failing to charge the jury that "if the defendant had no knowledge of the liquor being in the car, he could not be convicted." There was evidence that a man named Harrison obtained an automobile from the father of the accused; that he drove the car off to take a passenger to Chattanooga; that the car broke down that Harrison telephoned to a mechanic named Carr to come and repair the automobile; that Carr procured a truck, went to the home of the father of the defendant, and there picked up the defendant and his father, and brought them to where the automobile was standing. The mechanic swore that when he reached the car Harrison was there; that he found a spindle arm was broken, and that he went to Marietta to have it welded; that Harrison went with him, but that he left the defendant and his father with the automobile. An officer swore that when he reached "where the car was broke down" the accused was sitting there in the car, and that the "back of the car was locked up." The mechanic further swore: "I did not know there was a drop of liquor in the car, and nobody else did, as far as I know." The father of the defendant swore: "I certainly did not know that Mr. Harrison had any liquor neither did my son know anything about the whisky. He was not driving the car." In his statement the defendant said "I did not know any liquor was in the car at all. Had I known the liquor was in the car--because I did not have anything to do with putting the liquor in the car--I would have told them." It will thus be seen that the defendant contended that he had no knowledge that there was any whisky in the automobile. The instructions given the jury, as shown by the record, ignored altogether this contention of the defendant. Nowhere in his charge did the court instruct the jury that, if they believed the contention of the defendant, and found that he did not know that the automobile contained whisky, they could not convict him. To fail to so charge was error requiring the grant of a new trial. See Baker v. State, 19 Ga.App. 451 (1), 91 S.E. 785; Citizens' Trust Co. v. State of Georgia, 26 Ga.App. 750 (2), 107 S.E. 274.

It is unnecessary to discuss the other special grounds of the motion for a new trial, as the errors complained of therein are such that they are not likely to recur upon another trial.

Error from Superior Court, Cobb County; D. W. Blair, Judge.

G. A. Harvill was convicted of an offense, and he brings error. Reversed.

Broyles, C.J., dissenting.

Walter A. Sims, of Atlanta, and Clay & Blair, of Marietta, for plaintiff in error.

John S. Wood, Sol. Gen., of Canton, and Lindley W. Camp, of Marietta, for the State.

BLOODWORTH, J.

Judgment reversed.

LUKE, J., concurs.

BROYLES C.J. (dissenting).

The evidence adduced upon the trial of this case authorized the jury to find that, about 1 o'clock at night, certain officers found the defendant in charge of a disabled automobile on the public road between Atlanta and Marietta. The defendant was sitting at the wheel of the car, and the back of the car was locked up, and, when...