Scott v. State

• Decision Date: 12 March 1938
• Docket Number: No. 26559.,26559.
• Citation: Scott v. State, 57 Ga.App. 489, 195 S.E. 923 (Ga. App. 1938)
• Parties: SCOTT. v. STATE.
• Court: Georgia Court of Appeals

57 Ga.App. 489

195 S.E. 923

SCOTT.

v.STATE.

No. 26559.

Court of Appeals of Georgia, Division No. 1.

March 12, 1938.

Syllabus by the Court.

1. "Circumstances are but minor facts, although the words, facts, and circumstances are used interchangeably in the phrase 'circumstantial evidence.'"

2. Direct evidence is that which immediately proves the ultimate fact; that is, the very fact at issue.

3. Indirect or circumstantial evidence is that which establishes, not the ultimate fact, but evidentiary facts; that is, facts from which an inference may be drawn of the existence of the ultimate or main fact.

4. Where the husband, the defendant, and his wife are both present in a house admitted by the defendant to be his home, the wife being in a room thereof destroying intoxicating liquors, and the husband being on the porch thereof when the officers arrive, the finding of such intoxicating liquors in the home under such circumstances is direct evidence of the fact of the defendant's guilt, for when the officer testified that he saw and found the whisky in the home of the defendant, this was testimony which was the legal equivalent of testimony that the officer saw and found the whisky in the possession of the defendant.

5. When a witness is objected to on the ground that he is incompetent to testify, the question must, as a general rule, be decided by the court. Goodson v. State, 162 Ga. 178 (2), 132 S.E. 899.

6. If upon the conclusion of the testimony of the witness he appears competent heshould be permitted to testify, but if from the evidence it appears doubtful, his competency depending upon a fact, and the court submits to the jury the determination of such question, the judge does not commit error, and certainly not reversible error, in so leaving the determination of this question to the jury.

Error from City Court of Bainbridge; P. D. Rich, Judge.

Frank Scott was convicted of having, controlling, and possessing intoxicating liquor, and he brings error.

Affirmed.

Vance Custer, of Bainbridge, for plaintiff in error.

MacINTYRE, Judge.

The defendant, Frank Scott, was charged with having, controlling, and possessing intoxicating liquor. He was convicted, his motion for a new trial was overruled, and he excepted.

Joe Smith, an officer and a witness for the State, testified: "I got a search warrant and asked the Sheriff to go to Frank Scott's house with me. We drove up in front of Frank Scott's house and I got out of the automobile and started to the house. His wife started closing the door. I pushed it open and when I got to the bathroom Mrs. Frank Scott was flushing the toilet and pouring the whisky in it. I saved some of it in the pitcher. Whisky was in the pitcher and she was pouring it out. I saw it being poured out. It was a pretty good size stream. It held a quart or better. The whisky was on a table. It was in the bathroom on a table. She grabbed it and spilled it on the floor." W. J. Catledge, another officer of the State, testified: "On the 27th day of June I went to Frank Scott's home. I had a search warrant. I made a search of his place. It was in Decatur County. His wife was there. I found a pitcher, two bottles, and these glasses on the table. I found them in the bathroom. Whisky came out when I tried to get the glasses out. Frank Scott was on the porch. His wife was locking the door and Smith and I knocked it open. It was at Frank Scott's home that I found the whisky. A very strong scent of whisky was in the room. I do not know of anything that Frank Scott does for a living except selling whisky." The defendant in his statement admitted that the place where the whisky was found was his home, and that he was on the porch thereof at the time of the finding of the same.

1. The defendant contends that the judge should have charged the law of circumstantial evidence without request for the reason that the State was depending entirely upon such evidence for conviction. "Circumstantial evidence is more clearly defined from its results than by a definition of the phrase itself. It is that evidence that tends to prove the facts in issue by proving other facts or circumstances that, according to the common experience of mankind, usually attend the facts in issue, affording a basis for a reasonable inference by the court or the jury that the facts in issue actually occurred." 2 Wharton's Criminal Evidence, 10th Ed, 1632, § 871. "Circumstances are but minor facts, although the words, facts, and circumstances are used interchangeably in the phrase, 'circumstantial evidence.' When we speak of a circumstance we have in mind a fact that related to or is connected with the main fact. When these minor facts point unerringly to a conclusion, then they are said to be certain." 2 Wharton's Criminal Evidence, 10th Ed, p. 1635, § 874.

Direct evidence is that which immediately proves the ultimate fact, that is, the very fact at issue. Indirect or circumstantial evidence is that which establishes, not the ultimate fact, but evidentiary facts; that is, facts from which an inference may be drawn of the existence of the ultimate or main facts. To illustrate a case depending entirely upon circumstantial evidence, if in a case of simple larceny the testimony showed only that the witness saw the recently stolen goods in the possession of the defendant, this is direct evidence that the defendant was in the possession thereof, but possession in this kind of a case is not the ultimate and main fact in issue. In other words, this is direct evidence of an evidentiary fact (the possession); that is, it is direct evidence of a fact from which an inference may be drawn of the existence of the main or ultimate fact, to wit, the theft of the goods by the defendant. And, where only the possession is shown in such a case, the law of circumstantial evidence should be charged even without request, for there is no direct evidence of the main fact, the stealing of the goods. In the instant case, themain or ultimate fact is the possession of the intoxicating liquors, and when it is shown that the witness or witnesses saw the whisky in the home of the defendant, this is direct testimony of the ultimate or main fact in issue, to wit, possession or control of the intoxicating liquors, and the law presumes that the house, the intoxicating liquors, and all the other household effects found in the home of the defendant, belong to him as head of the family. Direct evidence of participation in the possession or control of intoxicating liquors is not mere circumstantial evidence of guilt. Morris v. State, 51 Ga.App. 145, 179 S.E. 822; Strickland v. State, 167 Ga. 452 (1), 145 S.E. 879. "Matter, logically evidential, has become the subject of a rule which directly, although only prima facie, annexes to it legal consequences belonging to the facts of which it is evidence; and this rule takes its place in the substantive law as a subsidiary proposition, alongside of the main and fundamental one, as an aid in the application of it. The law, as I have said, is always growing in this way, through judicial determinations; for the application of the ultimate rule of the substantive law has to be made by reasoning; and this process is forever discovering the identity, for legal and practical purposes, of one state of things with some other. Many facts and groups of facts often recur, and when a body of men with a continuous tradition has carried on for some length of time this process of reasoning upon facts that often repeat themselves, they cut short the process and lay down...