Union v. State

• Decision Date: 09 November 1909
• Docket Number: (No. 2,125.)
• Citation: 7 Ga.App. 27,66 S.E. 24
• Parties: UNION. v. STATE.
• Court: Georgia Court of Appeals

(7 Ga.App. 27)

66 S.E. 24

UNION.

v.STATE.

(No. 2, 125.)

Court of Appeals of Georgia.

Nov. 9, 1909.

(Syllabus by the Court.)

Error from City Court of Brunswick; D. W. Krauss, Judge.

Ed Union was convicted of violating the prohibitory law, and brings error. Affirmed.

The defendant was convicted of a violation of the prohibition law. One witness testified positively to a sale of whisky, that he was familiar with the effects of whisky, and that the liquid he bought was intoxicating. Another witness testified that he was informed that the defendant was engaged in selling intoxicating liquors, and that he went to the defendant's house on a rice plantation about nine miles from Brunswick, and stationed himself where he could see inside through a hole about as large as his fist, and saw quite a number of persons served by the defendant from a jug; that the liquid was first poured into a tomato can for the customer, who thereafter drank it from a broken wine glass; that, after satisfying himself as to the nature of the transaction being conducted in the defendant's house, he entered the house in company with another, arrested the defendant, and seized the jug, the tomato can, and the broken glass. This latter witness testified that he had never drunk a drop of whisky in his life, but that the liquid in the jug smelled like whisky, and that it was whisky; that he saw at least a half dozen men buy and pay for the liquid that came out of the jug; that the money was paid to the defendant, and the witness saw change made, and saw the men drink out of the glass after the liquid was poured from the tomato can. The jug, the can, and the glass were delivered to Mr. Lowe, the jailer, and their possession accounted for from the time they were delivered to him by the witness up to the time they were offered in evidence. Several witnesses testified that the general character of the witness, who testified that he himself had purchased whisky from the defendant was so badthat they would not believe him on oath. The testimony of Higginbotham, who testified to the transaction identified by the jug, the tomato can, and the broken glass, was objected to upon the ground that the witness admitted that he would receive, in the event of the conviction of the defendant, a reward of $25, which had been offered by the county commissioners of Glynn county in each case where a conviction for a violation of the prohibition law was effected.

Francis H. Harris, for plaintiff in error. Ernest Dart, Sol., for the State.

RUSSELL, J. (after stating the facts as above). 1. The evidence authorized the conviction of the defendant. The testimony of the witness Powell was direct and unequivocal to the effect that he bought from the defendant, at a time within the statute of limitations, a half pint of whisky, and paid him 35 cents for it; that he bought the whisky, and drank it; and that it was intoxicating.

2. An effort was made to impeach the testimony of Powell by proof of bad character. Most of the witnesses introduced for this purpose testified merely to the effect that his character was bad for fighting and shooting, and, of course, upon this the jury would have been authorized to find that, although the witness was turbulent, he need not for that reason be untruthful. But, though there was testimony which fully met the requirements of testimony designed to impeach a witness by proof of general bad character, the jury were not bound for this reason to discredit the testimony of the witness whose impeachment was attempted. In the first place, the jury saw the attacking witnesses as well as the witness attacked, and may have been convinced from their appearance upon the stand that the witness attacked was more trustworthy than those by whom it was sought to impeach him; or, if not (and this is more in accord with the reason of law), although they may have believed that the witnesses who swore to the bad character of the state's witness testified honestly when they said that they would not believe him, the jury may have been satisfied that in the particular case then on trial the witness was swearing the truth, notwithstanding he bore a bad character. So fully is the subject of impeachment within the province of the jury, that, if they (in spite of an attempt at impeachment) find a verdict which can be sustained only on the theory that the testimony of the witness sought to be discredited was accepted as true, a reviewing court is powerless to disturb the finding, unless some error of the trial judge contributed to the result.

3. When the witness Higginbotham was introduced, the defendant asked that the jury be retired, and strenuously maintained that the witness was incompetent to testify by reason of the fact that he was interested in the result and would receive a reward of $25 in case of the conviction of the defendant. The court overruled the objection, and Higginbotham was permitted to testify, ashas already been stated, as to having seen several persons purchase and pay for a liquid poured from a jug into a tomato can at the defendant's house. The witness admitted that a reward of $25 had been offered by the county commissioners of Glynn county to be paid to the informant in each case where a conviction of violating the prohibition law was secured, and that he expected to receive that reward if the defendant were found guilty. There is no merit in the contention of learned counsel of plaintiff in error that Higginbotham, because he was an informer, and because he would receive a reward of $25 in event of the defendant's conviction, was incompetent to testify. The interest of a witness may affect his credibility; but it does not touch the competency of his testimony, except as expressly provided in the six exceptions to the general rule laid down in section 5269 of the Civil Code of 1895. Interest may discredit, but generally it does not disqualify, a witness. We admit that if we were jurors, and it appeared that the prosecuting witness was to receive money in case of conviction, and that this was the motive inducing his testimony, we would not as readily yield to the conviction of the defendant's...