Roberson v. State, 31707.

• Decision Date: 30 October 1947
• Docket Number: No. 31707.,31707.
• Citation: 44 S.E.2d 924
• Parties: ROBERSON . v. STATE.
• Court: Georgia Court of Appeals

44 S.E.2d 924

ROBERSON .

v.STATE.

No. 31707.

Court of Appeals of Georgia. Divisions Nos. 1 and 2.

Oct 30, 1947.

Syllabus by the Court.

1. The venue was sufficiently proven.

2. Special ground 3 shows reversible error, for the reasons given in the body of the opinion.

3. Special ground 4 shows no reversible error, for the reasons given in the body of the opinion.

4. The other grounds are not discussed, since the case may be tried again.

Error from Superior Court, Floyd County; C. H. Porter, Judge.

Paul "Jud" Roberson was convicted of having possession and control of whiskey without affixed state revenue stamps and of more than one quart of whiskey in dry county before the act legalizing and controlling whiskey became operative, and to review a judgment overruling his amended motion for a new trial, he brings error.

Reversed.

The defendant was tried and convicted upon an indictment containing two counts. The first count charged him with having in his possession and control, whiskey to which no revenue stamp of the State of Georgia was fixed. The second count charged him that he did possess and control in Floyd County, Georgia, more than one quart of whiskey and at the time the Revenue Tax Act of the State of Georgia to legalize and control whiskey, Code, § 58-1001 et seq., had not been made operative under the terms of the Revenue Act. The defendant was convicted on both counts. An amended motion for a new trial was made by the defendant and overruled. To this judgment he excepts.

James Maddox, of Rome, for plaintiff in error.

E. J. Clower, Sol. Gen., G. W. Langford, Asst. Sol. Gen., and T. J. Espy, Jr., all of Rome, for defendant in error.

GARDNER, Judge.

1. Special grounds 1 and 6 assign error on the ground that the venue was not proven. While it is true that John Hall, when asked if the whiskey was found in Floyd County, said: "Well, I suppose it was." Yet one of the officers stated positively, "This place where we found this whiskey is in Floyd County." These special assignments of error are without merit.

2. Special ground 2 assigns error on the following excerpt from the charge of the court: "I charge you that all connected with the violation of the criminal statute in a misdemeanor case, and this is a misdemeanor case, are principals, and there are no accessories in the violation of a misdemeanor statute, all are principals who aid, abet, assist, advise or council in the commission of the crime charged." This states substantially the correct principle of law. Considering the charge as a whole and this excerpt, we can not see any reason why the jury should have become confused or as to why this excerpt contains reversible error.

3. Special ground 3 assigns error because of the following excerpt from the charge of the court: "I charge you that the husband is the head of the family, and as such head of the family is in possession of the home and premises where he resides and of the articles therein and thereof. Whether or not any whiskey was found at any other place is the question for the jury to determine, but whether on the premises or in the home of the defendant or elsewhere, if the jury believes from the evidence, giving to the testimony of each and every witness such weight and credit as you think it is entitled to receive, as well also the statement of the defendant, if the jury believes from the evidence and the defendant's statement that the defendant was in possession, custody or control of the prohibited liquors mentioned in the indictment, wherever it might be in this county, you'll be authorized to find him guilty of the possession, custody or control of said liquors, provided he was in the possession, custody or control of said liquors, either by himself or by or through some other person for the defendant." We think this charge is cause for reversal. It is true that where one is shown to be the head of the family and there is contraband liquor therein, the presumption is that the possession of such liquor is that of the head of the family, but this is a presumption of fact which is rebuttable. The court should have so charged. Morgan v. State, 62 Ga.App. 493, 8 S.E.2d 695; Thomas v. State, 64 Ga.App. 315, 13 S.E.2d 92; Gray v. State, 66 Ga.App. 50, 16 S.E.2d 916; Haney v. State, 44 S.E.2d 492.

4. Special ground 4 assigns error upon the ground that if the defendant was guilty at all, he was guilty of one offense only, and that is the offense of having tax unpaid liquor in a "dry" county as covered under count 1. And that Floyd County, being a "dry" county, possessing contraband liquor therein as alleged under count 2 sets out no offense. This identical question was before this Court in the case of Pierce v. State, 73 GaApp. 627, 37 S.E.2d 431, was determined adversely to the contentions of the defendant. Counsel for the defendant concludes that this Court is in conflict with the case of Pierce v. State, 200 Ga. 384, 37 S.E.2d 201. Before this Court delivered the opinion in the Pierce case, supra, we certified certain questions to the Supreme Court, which were answered in the case of Pierce v. State, Georgia Supreme Court, supra. We are asked that the decision of this Court in the Pierce case, supra, be overruled on the ground that it is in conflict with the ruling of the Supreme Court in the Pierce case, supra. This is declined for the reason that our interpretations of the statute involved are not in conflict with the ruling of the Supreme Court thereon. This assignment shows no reversible error.

5. Special ground 5 assigns error on a ground pertaining to a continuance. It is not necessary to discuss this ground, since the case is being reversed.

Neither will we discuss the case insofar as the evidence pertaining to the general grounds is concerned.

The court erred in overruling the motion for a new trial for the reasons set out in the third division of this opinion.

Pursuant to the Act of the General Assembly, approved March 8, 1945, Ga.L.1945, p. 232, this case was considered and decided by the court as a whole.

Judgment reversed.

SUTTON, C. J., MacINTYRE, P. J., and PARKER, J., concur.

FELTON and TOWNSEND, JJ., concur specially.

FELTON and TOWNSEND, Judges (concurring specially).

The answer of the Supreme Court in Pierce v. State, supra, on the certified questions, being contrary to our position, and since we did not participate in the subsequent decision of that case by this Court, which was required as rendered by this Court in order to conform to the answer of the Supreme Court, we concur specially in division four hereof. This we do without criticism of the Supreme Court or the Judges of this Court who share its views, but in order to avail ourselves of this our first opportunity since the rulings of the Supreme Court and of this Court in the Pierce case to state our position on the construction of the statutes involved.

We do not think that the Legislature by the "Revenue Tax Act to Legalize and Control Alcoholic Beverages and Liquors" in-tended to provide that any prohibition law or any law relating to the beverages legislated about in the act should be effective in a dry county except Code, § 58-201, as amended by the new act to permit possession of one quart of legally stamped liquor in a dry county. All of the remainder of the act was intended to be of force only in wet counties. Section 4 of the act provides: "The license hereinafter provided for and the tax levied on the manufacture, sale, and distribution of distilled spirits and alcohol, as authorized by this Chapter, is...