Cook v. State , 124 Ga. 653 ( 1906 )

LuMPKIN, J.

1. The principal witness on behalf of the State-was Charles Bennett, who testified that he bought whisky from the-defendant in July, 1905. In the course of the examination it was. developed that he had made to another person a statement conflicting with his evidence on the stand, and.denying that he had bought whisky from Cook. Thereupon the State, over objection, introduced evidence to show that he had. stated to two other witnesses^ that he had bought whisky from Cook and owed him for it. This was error. It has sometimes been, held, that where an effort has-, been made to impeach a witness by proof of statements inconsistent; with his testimony given on the stand, it is admissible to sustain, him by showing that on other occasions he made statements eon-fsistent with such testimony. But other courts hold the contrary position. 1 Gr. By. (16 eel.) §469(b). The latter ruling, in our ■opinion, rests upon the sounder basis of reasoning. As said by Mr. 'Greenleaf, in referring to statements consistent with the testimony ■of the witness as being explanatory of statements not consistent with it, made at other times, “But, on the other hand, the latter in no sense explain away the former; the inconsistency on that occasion is just as damaging, even though the other story has been repeated a score of times.” In this State the point has been directly passed upon in several cases. Georgia R. Co. v. Oaks, 52 Ga. 410(7); Russell v. State, 93 Ga. 450; Knight v. State, 114 Ga. 48(3); Atlanta, Knoxville & Northern R. Co. v. Strickland, 116 Ga. 439. The circumstances under which such evidence might become admissible were discussed in McCord v. State, 83 Ga. 521, 531. If it were sought to show that the witness, in a certain conversation, made statements inconsistent with his testimony, it would be competent to prove all that he said -in that conversation which would throw light-on the question of whether his. statements were in fact inconsistent or not.

2. Error is alleged on the ground that the court charged, in effect, that if the accused delivered to one Bennett whisky at an agreed price, and Bennett promised to pay for it by delivering to the accused a hog, the sale would be complete, although the purchaser may not have made the páyment. We can not assent to the proposition that the sale of whisky on a credit is no sale at all. It would introduce an innovation .into the law to declare that nothing was sold until paid for. Nor can we perceive that the fact that the medium of payment agreed upon was a hog would alter the principle. Selling liquor without a licénse is none the less prohibited because payment is to be made in pork. The accused apparently labors under the delusion that he .ought not to be convicted for an illegal sale of whisky, because the purchaser has violated his promise to pay for it. Not having reaped the reward which he anticipated as a result of the unlawful sale, he appears to entertain the view that he should be relieved from punishment. The criminal law does not make an equitable adjustment with one who violates it, so as to excuse him if his crime has not been as profitable as he anticipated. The failure to receive the hog stipulated for, however disappointing to the vendor of the whisky, will not prevent his conviction for celling it without a license. The ease of Crabb v. State, 88 Ga. 584, relied on by counsel for plaintiff in error, is not in point. There whisky was sent by express “G. 0. D.” and the sale was not complete until it was paid for and delivered. But the case of Cook and the case of Crabb* axe different. McGruder v. State, 83 Ga. 616.

3. A witness testified as follows: “I know Handy Cook. I heard .him make a free and voluntary statement about selling whisky, on ‘the 29th of October at Charles Bennett’s house. He [meaning Handy Cook, defendant] then said old man Charles Bennett owed him ffor some whisky he had sold him* -and that he was going to have his pay that day or die and go to hell. He did not say when nor where he had sold Charles Bennett whisky. I am related to Charles Bennett. I went to Charles Bennett’s, and Handy was there. He asked me if it was not right for a man to pay his debts. I told him yes. I ásked Handy if I owed him anything. He said, •‘No, but these God damn negroes owe 'me for whisky and won’t ■pay me. Old man Charles Bennett owes me a black sow pig, and I am going to have it to-day or die and go to hell.’” This was objected to, “because defendant did not specify in said statement ■any time or place when he sold Charles Bennett whisky.” The court overruled the objection and admitted the evidence. If there is ■enough to indicate that the admission or confession has reference ' to the transaction under investigation, it is admissible, although the defendant fails to confess with complete specification.

As a new trial will be had, we refrain from expressing any opinion ■ as to the evidence.

Judgment reversed.

All the Justices concur.