Elder v. Stark , 200 Ga. 452 ( 1946 )

1. In an action by the solicitor-general on information of citizens of a county to abate, as a common nuisance, a place or structure where liquors or beverages as defined in the Code, §§ 58-101 and 58-109, are sold, served, or kept for sale or other unlawful disposition, and where the place is also a "blind tiger" as defined in § 58-110, testimony as to the general reputation of the place as a "blind tiger" is admissible.

2. In such a proceeding, testimony of a witness as to finding ten pints and two four-fifths of a quart of whisky, on a raid about four months before the filing of the instant action, and testimony of another witness as to finding eleven fifths of gin and one pint of whisky at the place in question, on a raid about nine months before such action, was admissible, where under the allegations and evidence it was shown otherwise that the buildings contained secret panels, traps, and like devices of illicit concealment, and there was additional evidence, circumstantial and direct, of continuity of operation and intention to operate the place in violation of the law after the previous raids and confiscations.

3. No question of res gestae is properly presented, and in the absence of objection to the testimony as hearsay, there is nothing in that special ground to be decided.

4. It was not error to admit in evidence a pint and a portion of a pint of whisky, when one of the issues was whether its possession was lawful or unlawful; the defendant contending that it was for the personal use of his wife, and the plaintiff contending that it was kept for sale or unlawful disposition.

(a) Where the petition alleged and the evidence showed that no license had been issued by the county commissioners for the sale of wine, it was not error to admit in evidence several bottles of wine, some of them labeled "alcohol 18%" and "alcohol 20%" as found at the place, as a circumstance for the jury to consider whether or not the place was operated in violation of the law.

5. Certified copies of records maintained in the office of the Collector of Internal Revenue, which purported to show issuance to the operator of the place, questioned as a nuisance, of licenses as a wholesale and retail dealer in intoxicating beverages for an annual period ending in July before the instant petition was brought in September, were admissible in evidence as against objections that the licenses had already expired, and that they were only letter memorandums, where continuity of operation of the place over a period of years and months was otherwise shown by the evidence, and where the documents were in the form of certified copies, and there was no objection that there was higher or better evidence.

6. Where a witness testified: "I believe it was a combination license. I took down the numbers and brought them in. I believe he [the defendant] also had a wholesale-whisky sign up over the door in the rear and down in the back where the entrance was. The agent with us said that it was a wholesale-liquor sign issued by the Government" — It was not error to admit such testimony over objection that "they had Mr. Irwin [another witness] on the stand and never offered to prove that fact by him. That would have been the highest and best evidence;" the objection at the time not urging that the testimony might not have been admissible on the ground of hearsay.

7. A regulation of the United States regarding classification as to the sale of wine and liquor is admissible to explain relative types of licenses for intoxicating beverages and liquors shown otherwise by evidence.

8. An examination of the charge as a whole not showing any unfairness in the proportion of statements by the trial judge to the jury as to the contentions of the parties, there was no error upon an assignment that the contentions of the plaintiff were explained in greater detail than those of the defendant, where the judge stated in substance the contentions of the defendant, and the jury were admonished that to gather the allegations of the parties in specific detail, they could and should read the pleading.

9. Where the plaintiff in error lifts out of a charge a sentence, as follows: "Under the law, gentlemen, you are the exclusive judges of the weight of the evidence, and this being so, you will determine for yourselves where the greater weight or preponderance of evidence rests on any question you have under consideration," and complains that this language was confusing to the jury in that it was not definite in its statement as to the preponderance of evidence and its resting place, the ground is without merit where the immediately preceding portion of the charge was an accurate statement of the omission complained of.

10. Specific questions covering the issues in an action of the instant kind may be submitted by the trial judge to the jury for their special verdict.

11. A portion of a charge, where the trial judge uses the term "malt liquors" and follows it with a statement of the law as to selling beer without a license, is not erroneous where the operation of the place without a license, in violation of the law, and as a "blind tiger," are charged.

12. Under the pleadings and evidence in the instant case it was not error for the trial court to charge, in part, as follows: "The law further provides that the delivery of the liquors and beverages mentioned in § 58-101, which I have just read, or any of them, from any store or building, if any part of the same is used as a public eating place, grocery store, or other place of common resort, shall be prima facie evidence of the sale or unlawful disposition."

13. The decree as a whole followed the verdict, and there was no error in entering it or the particular portion keeping the decree open for the purpose of converting the buildings and structures or any part of them into residential uses.

No. 15383. FEBRUARY 21, 1946. Hope D. Stark, as solicitor-general, upon the alleged request of citizens of the county, brought his petition to Barrow Superior Court against Elmer H. Elder, seeking to close and padlock a place of business and buildings known as Elder's Pinellas in said county as a nuisance, and to search for intoxicating liquors and beverages. The petition alleged substantially: That the defendant is the sole owner, proprietor, and operator. In the main building in which the business is operated there are numerous trap doors, secret passages and tunnels, and numerous cottages are also used in the said general business. He sells beer and wine in a dry county without a license by the county commissioners, has no license to carry on a place of amusement, and secretly sells large quantities of assorted liquors, whisky, rum, gin, and brandy. This operation is continuous, in flagrant violation of law. The building and premises are used as a gambling house. The place of business is also a public dance hall equipped with a juke box or music machine. There are private dining rooms and small houses connected with the premises. The place is a notorious "blind tiger," where the operator encourages idleness and loitering. The premises are not within an incorporated town. In paragraph 12 of the original petition there is an amplification of the previous allegations with more details given as an inducement and basis for the prayers: That the place of business and all buildings used in connection therewith be immediately treated as a nuisance and be closed and padlocked; that a search be made for liquor, beer, and wine; that the place be permanently closed and padlocked; and that a receiver be appointed to sell the property.

Upon the presentation of the petition, the judge granted a temporary order for the buildings, except parts used exclusively as a family dwelling, to be padlocked; for a search to be made for intoxicating liquors and beverages; and for the defendant to be served and show cause at a named time and place why the prayers of the petition should not be granted.

The defendant filed an answer admitting: That he is the operator of the place of business. He is a resident of Barrow County. His place of business is not within an incorporated town. Barrow County is a dry county. The defendant has no license from the county commissioners with reference to his place of business. He has some private closets in the building for storage and the deposit of valuables, and, he alleged, these are necessary to his safety and welfare for the reason that his place of business had been held up by gangsters and highway robbers. He has some music machines for the entertainment of his customers. He had a small quantity of intoxicants, in his private safe and in his private residence, which he alleged that he kept for family use, that is, for his wife, then in an advanced stage of pregnancy. He operates a barbecue stand, and he averred that he had paid the tax required by law for its operation.

The defendant denied substantially all the other averments of the petition, and then set out that he also conducted in connection with his place of business large farming operations with expensive equipment, by reason of which he had a number of employees. He averred that he and his family lived in one side of the main building, and that the smaller buildings on his farm connected with the main building are occupied continuously by his employees and their families. He further averred that, at the time his place of business was raided and closed under the order of court, no whisky was found except a pint and a fraction of a pint; and also stated that he was then in possession of some wine and beer, all of which he claimed was not in violation of law.

The solicitor-general amended his petition by further alleging that the place was a resort, where intoxicating liquors and beverages, that is distilled spirits, whisky, brandy, rum, and gin, vinous intoxicating liquors and beverages of the kind mentioned in § 58-101 of the Code of 1933 are kept for sale, sold, and drunk.

The defendant filed demurrers to the petition, which were overruled, with the exception of a sentence of one paragraph; but in the absence of exception pendente lite, we are not here called on to decide any issue on demurrer since the case went to trial on its merits before a jury.

The chairman, two members, and the clerk of the County Commissioners of Barrow County, testified that Elmer H. Elder had not been licensed by that body to sell beer or wine or to operate a dance hall. T. C. Etheridge, one of the commissioners, over objections by counsel for the defendant Elder, was permitted to testify, in answer to a question propounded by counsel for the solicitor-general, that the general reputation of Pinellas for being a "blind tiger" is bad. Various other witnesses for the plaintiff also were permitted, over objection, to be asked to answer that question in the affirmative.

T. L. Carroll testified: That he was an officer with the Department of Revenue of the State of Georgia, as enforcement agent of the liquor division. He and other officers raided Elder's Pinellas on May 20, 1944, and found ten pints and two four-fifths of whisky in the safe and some on the outside of the safe. He testified further that they found five different traps, some controlled by a three-way electric switch. There were twelve or fifteen rooms in the building. Fifty or seventy-five cases of beer were found in one room, some wine in the front, and there were juke boxes or music machines operated by coins inserted. The witness said: "I never saw a more elaborate place for concealing whisky. From its construction I would say that it could not be used for any legitimate business."

L. C. Hemphill testified that he was a State revenue agent, and that on September 22, 1944, he was present with other officers when Elder's place was raided and a pint and a half of whisky, thirty cases of beer, and ten cases of wine were found. He identified some of the wine as being labeled 18 percent and 20 percent alcohol.

Furman Greer testified that he was an investigator with the Federal Alcohol Tax Unit, and was present on the September 22, 1944, raid of Elder's place. He described one of the traps and how a panel in the wall operated by pulling a string. He testified as to finding the one and a half pints of whisky.

C. W. Wilson, also connected with the Federal Alcohol Tax Unit, testified as to the raid of September 22, 1944, and generally corroborated the testimony of the witnesses Hemphill and Greer.

Richard Pierce testified that he lived about one and a half miles from Elder's place, and that he had bought some whisky from Elder "within the last two years."

Homer Pressley testified that he had seen people come from Elder's place under the influence of liquor, one instance being of an automobile driven against his rock wall about a mile distant from Pinellas.

Wiley Pierce testified that he lived about 400 yards from Elder's place. He had seen automobiles congregated at the place at night. He was disturbed by noise from the music boxes sometimes until twelve and two o'clock at night. One time in 1944 he passed the place and two men were trying to put a drunk woman in an automobile.

H. W. Irvin, an investigator for the Federal Tax Unit, testified that in December, 1943, he and other officers raided Elder's Pinellas. They found trap doors and false walls. On that raid eleven fifths of gin and one pint of whisky were seized and turned over to the sheriff.

Clarence Keith testified that he was 18 years old. He visited Elder's Pinellas in June, 1944, and at that time he saw wine, beer, and whisky drunk in the place.

The sheriff, Clay Camp, testified: That he raided the place two times. The first time he found nothing, but the second time he found a trap built in the wall in which there were twelve quarts of gin and one pint of whisky. On cross-examination he fixed the time of the raids as being within the last three years. He saw wholesale beer and liquor licenses (Federal) displayed in Elder's place. Several true bills had been found against Elder in Barrow County for selling beer, wine, and whisky. The true bill for selling beer was in 1941. The population of Winder is 4000; of Barrow County, 14,000.

The solicitor-general introduced in evidence certain bottles of liquids labeled: Sherry Wine, alcoholic content 18% to 20% by volume; Imperial Brand Wine, alcoholic content 20%; California Port Wine, 20% alcohol by volume; several bottles labeled wine 14%; and a bottle only part full labeled Walker's DeLuxe Straight Bourbon Whisky. And, over objection, there was introduced in evidence "a certified copy of record 10 file, maintained in the office of Marion H. Allen, Collector of Internal Revenue, as required by section 3275A, to E. H. Elder, Elder's Pinellas, five miles north of Winder, Georgia, wholesale dealer, and with stamp No. 233 from July 1943 to June 1944." Also, over objection, there was introduced in evidence, "another one — retail dealer in wine dated from July 1943 to June 30, 1944, certified copy." Also, over objection, there was introduced a "regulation of the United States as to classification as to the sale of wine and liquor, sections B and C." The exhibit is as follows: "Sec. 194.8. Single Sale. A single sale, unattended by circumstances showing the one making the sale to be engaged in business, does not create a special tax liability. (Sec. 3250, I.R.C.). Sec. 194.9. Brokers or agents. A broker or agent may solicit orders for liquors in the name of a customer or principal, receive a commission for his services, and make collections for his customer or principal without incurring liability or special tax. (Sec. 3250, I.R.C.). Sec. 194.10. Classification of alcoholic liquors. There are three general classifications of alcoholic liquors for purposes of special tax: (1) distilled spirits, (2) wines, and (3) fermented malt liquors. Distilled spirits include alcohol, whisky, brandy, gin, rum, cordials, liqueurs, cocktails, etc. Wines include still wine, champagne, sparkling and carbonated wines, vermouth, etc. Fermented malt liquors, include such products as beer, ale, stout, porter, sake, etc. (Secs. 2800, 3030, and 3150, I.R.C.)." Without objection the indictments identified by Sheriff Camp were introduced in evidence.

After the plaintiff rested, the defendant Elder introduced documentary evidence as follows: Special tax receipt for the year 1944, issued by Willie Hill, tax collector of the county, covering the cafe. Sentence in case number 2355 showing a fine of $700. Sentence in case number 2262 showing fine of $400 on one count and fine for same amount on another count. A deed recorded in Book 0, pages 353 and 354, June 27, 1939, showing a conveyance of the property in question from Mrs. Ella Dillard to Mrs. Blanche Elder.

Crawford Nash, a witness for the defendant, testified: That he lived four or five hundred yards from Pinellas for thirteen months, though he hadn't been home much since July. He had bought barbecue there once or twice. At times he could hear the music box playing. It did not disturb him. He never saw anything disorderly.

Arthur Helton testified for the defendant: That he resided about one-half mile from Pinellas during the last four years. He had been to the place several times. He never saw anything disorderly, although he passed there once or twice a week. He had never seen any drinking except soft drinks.

Lavada Motes, cook for the defendant, testified: That Elder and his wife had living quarters on the right side of the building consisting of a kitchen, living room, and bedroom. In the bedroom there was an iron safe. She said she never saw wine, liquor, or beer.

E. R. Jones testified for the defendant: That he lived about one-fourth of a mile from Pinellas, during the past year. He had been to the place a few times. He passed by the pace on the road each day. He never saw any disorderly conduct. On cross-examination, the witness stated that he was Elder's tenant.

Albertus Rutledge, a witness for the defendant, testified: That he worked for Elder several times as a plumber. Some of the work was done "Last year." There was never any disorder while he was there.

Dr. L. P. Pharr testified for the defendant: That he was Elder's physician. He had been to Elder's home on calls night and day. He never saw any disorder there.

Roy Kensey testified for the defendant: That he worked some as a plumber for Elder, and he never saw any disorder while he was there.

Edgar Etheridge, a witness for the defendant, testified: That he lived about three-fourths of a mile from Pinellas. He had been to the place three or four times. He frequently passed by the place on the road, and never saw any disorder. On cross-examination, the witness stated that he noticed a beer sign on the outside of the building, but "he never bought a drop."

Harold Chandler testified for the defendant: That he was 22 years old, and had been to Elder's place a few times. He never saw any disorder or any sales of wines, beer, or liquor.

L. E. Cook, a witness for the defendant, testified: That he did some painting for Elder "last summer and fall." It was a quiet place when he was there. He never saw any drinking, gambling, or selling whisky, wine, or beer.

J. T. Duke, a witness for the defendant, testified: That he had done some painting for Elder during the past five years. He never saw any disorder, and never saw any drinking, gambling, dancing, or other kind of misconduct.

J. T. Hawthorne, testified for the defendant: That he carried a laundry and milk route by Elder's place each week during the past five years, and never saw any drinking or gambling.

Guy McDonald testified for the defendant: That he had been to Elder's place, but didn't see any disorder, drinking, or selling beer or wine or dancing or gambling.

At the conclusion of the evidence and charge, the trial judge propounded written questions to the jury, as follows: "Question 1. Was the place described in plaintiff's petition as the place and structure known as Elder's Pinellas, at and immediately prior to the filing of plaintiff's petition, a ``blind tiger' — that is, a place and structure where spirituous, malt, or intoxicating liquors were sold in violation of law? Question 2. Was the place described in plaintiff's petition as the place and structure known as Elder's Pinellas, at and immediately prior to the filing of plaintiff's petition, a place and structure used for the unlawful sale, keeping for sale, or other unlawful disposition of prohibited liquors and beverages, to wit, alcohol, alcoholic liquors, spirituous, foreign or all mixed liquors, any part of which is spirituous, foreign or domestic spirits, or rectified or distilled spirits, absinthe, whisky, brandy, rum, or gin, or any of them? Question 3. Was the place described in plaintiff's petition as Elder's Pinellas a house or place where the said liquors and beverages named in question numbered two above, or any of them were sold, bartered, kept for sale, or otherwise disposed of, to be drunk on or near the said premises? Question 4. Was the place described in plaintiff's petition as Elder's Pinellas, at and immediately prior to the filing of plaintiff's petition, a place of resort where persons were permitted to resort for the purpose of drinking such liquors and beverages, or any of them as named and described in question number two above? Question 5. Was the place described in plaintiff's petition as Elder's Pinellas, at and immediately prior to the filing of plaintiff's petition, a public eating place where the said liquors and beverages named in question number two, or any of them, were sold or served for beverage purposes? Question 6. Was the place and establishment described in plaintiff's petition as Elder's Pinellas, at and immediately prior to the filing of plaintiff's petition, maintained and operated by the defendant as a public dance hall, or amusement place, or barbecue stand for money or profit, without having first obtained the permission of the Commissioners of Roads and Revenues of this County? Question 7. Did the defendant, at or immediately prior to the filing of plaintiff's petition, operate and maintain the place described in plaintiff's petition as Elder's Pinellas in the way and manner so that it tended to the immediately annoyance of the citizens in general, or was manifestly injurious to the public health or safety, or tended greatly to corrupt the manners and morals of the people?

As their verdict the jury answered all of the questions in the affirmative. Upon the special verdict the trial court issued a judgment and decree declaring Elder's Pinellas to be a public nuisance; ordering the buildings, except the portions used for residence purposes, to be padlocked; permanently enjoining the defendant Elder from using said padlocked portions of the buildings; and keeping the decree open for the consideration of any application for its modification to permit conversion of the buildings into residential uses.

The defendant Elder filed his motion for new trial on the usual general grounds, and amended it by adding fourteen special grounds. Upon the overruling of the motion for new trial as amended, the case was brought to this court for review. Certain common nuisances are defined, and provision is made for their abatement, by the Code, § 58-109, which reads: "The following are hereby declared to be common nuisances and may be abated as such upon complaint of the Attorney-General, or the solicitor-general of the circuit, or any citizen of the county: (1) Any rooms or structures used for the unlawful manufacture, sale, keeping for sale or other unlawful disposition, of the liquors and beverages mentioned in section 58-101, or any of them: (2) all houses, shops or places where the said liquors and beverages, or any of them are sold, bartered, kept for sale or otherwise disposed of, to be drunk on or near the premises, or where such liquors or beverages, or any of them, are kept for the purpose of sale or other unlawful disposition thereof; (3) all places of resort where persons are permitted to resort for the purpose of drinking such liquors or beverages, or any of them mentioned in section 58-101, on or about the premises; (4) any public eating place where the said liquors and beverages, or any of them, mentioned in section 58-101, are sold or served for beverage purposes. (Acts 1915, Extra Sess. p. 83)" The Code, § 58-101, provides: "The term ``prohibited liquors and beverage,' used in any law to promote temperance or to suppress the evils of intemperance, shall include the following: (1) alcohol, alcoholic liquors, spirituous, liquors and all mixed liquors, any part of which is spirituous, foreign or domestic spirits, or rectified or distilled spirits; absinthe, whisky, brandy, rum and gin; (2) vinous liquors and beverages; (3) nothing in this Chapter shall apply to fermented beverages made from malt, in whole or any part, or any similar beverages. (Acts 1915, Extra Sess., pp. 77, 79; 1935, p. 79.)" A "blind tiger" is declared a nuisance, and provision is made for its abatement or injunction, by the Code, § 58-110, as follows: "Any place commonly known as a ``blind tiger,' where spirituous, malt, or intoxicating liquors are sold in violation of law, shall be deemed a nuisance, and the same may be abated or enjoined as such, as now provided by law, on the application of any citizen or citizens of the county where the same may be located. (Acts 1899, p. 73.)" In the recent case ofDavis v. Stark, 198 Ga. 223 (31 S.E.2d 592), this court said: "The resolute purpose of the legislature to protect the public against the evils of such common nuisances is manifested by the provisions of the Code, § 58-107, where it is in substance declared that the keeping of any of the prohibited liquors or beverages in any building not exclusively used for a dwelling ``shall be prima facie evidence that they are kept for sale or with intent to dispose of same contrary to law; and the provisions of the Code, § 58-122, which declare that any and all the property used in such illegal keeping of liquors . . is contraband, in which the owner has no property right, and authorize the State to destroy or seize them. In providing for the abatement of such a nuisance rather than reliance upon criminal prosecution and an order of court enjoining it, both of which are subject to evasion, the legislature has by the law authorizing abatement made available an immediate and effective remedy for a complete removal of any injurious effect of such nuisances upon the public. In view of the provisions of the statutes and decisions of this court, there is now no room for reasonable doubt of the validity of the statutes and the authority of the trial court to render judgments giving full effect to the law."

1. It is insisted by the plaintiff in error in one of his special grounds that the trial court erred in admitting, over objections, testimony of witnesses for the solicitor-general to the effect that the general reputation of Pinellas for being a blind tiger is bad. The objections were: "There is no law authorizing it; the legislature has not spoken on that question, and not having spoken, refuses to confer the power to condemn a place by general reputation, unless the evidence has been admitted by law." It will be observed from the statement of facts that the testimony as to general reputation was only a part of the evidence in behalf of the plaintiff. Our appellate courts apparently have not heretofore decided whether or not testimony of general reputation in an action of the present kind is admissible. However, in a criminal prosecution for maintaining a bawdy house is competent. Hogan v. State, 76 Ga. 82 (3);Brindle v. Copeland, 145 Ga. 398 (2) (89 S.E. 332);Mimbs v. State, 2 Ga. App. 387 (58 S.E. 499). Evidence as to the general reputation of the inmates of a lewd house is admissible. Brindle v. Copeland, supra; Coleman v. State,5 Ga. App. 766 (2) (64 S.E. 828); McCain v. State,57 Ga. 390, 391 (1). But it was said in Jones v. State, 2 Ga. App. 433 (7) (58 S.E. 559), that "such evidence alone, wholly uncorroborated, is not sufficient to establish the offense of keeping and maintaining a lewd house." See also Wilkes v.State, 23 Ga. App. 727, 728 (99 S.E. 390). On a criminal charge of operating a gaming house, evidence as to general reputation is admissible. Bashinski v. State, 122 Ga. 164 (50 S.E. 54). In Martin v. State, 62 Ga. App. 902 (10 S.E.2d 254), which was an opinion by two of the three judges constituting a division of the Court of Appeals, it was said: "``The reason why disorderly houses were considered a nuisance may in general be said to be because they tended to draw together idle and dissolute persons engaged in unlawful or immoral practices, thereby endangering the public morals or peace.' 18 C. J. 1234, § 3. It is apparent that a disorderly house having as its evil elements immorality, gaming, vagrancy, illegal operation of slot machines, illegal purchases of whisky and beer, and the like, is provable, at least as to several of its elements, by evidence of general reputation, though insufficient of itself to prove the completed offense. Basically such a house is a nuisance, and we think, as such, its general reputation would be admissible." In 20 Am. Jur. 407, § 461, it is stated: "By the weight of authority, the reputation of a house is admissible upon the issue as to whether it is a disorderly house." The present case is one where the allegata and probate bring into issue the character of the place or structure as to whether it should be abated as a nuisance for the good of the public under statutes provided for the purpose. It contains elements embracing reasons as cogent for permitting evidence of general reputation as that of bawdy houses, lewd houses, gaming houses or disorderly houses. We hold that the trial court did not err in admitting testimony of general reputation of the place as a blind tiger.

2. Two of the special grounds deal with objections to the admission of testimony as to raids and intoxicants found some time previous to the filing of the present petition. T. L. Carroll testified: "On May 20, 1944, we searched Mr. Elder's place under a search warrant. Back in the bedroom in the rear of the building, we found a small iron safe . . and in it we found ten pints of Seagrams, two four-fifths of a quart, and then some on the outside of the safe." The objection was: "If Mr. Carroll did raid the place on May 20, 1944, and found liquor there, the supposition of law is that the whisky was confiscated on May 20, 1944, and evidence of that fact would not be admissible under the public-nuisance law September 20, 1944, or four months later." H. W. Irvin testified: "In December 1943, I together with . . officers raided Mr. Elder's place known as Pinellas . . and in it was eleven fifths of gin and one pint of whisky. We seized it and turned it over to the sheriff." The objection, in substance, was the same as that offered to the testimony of Carroll. Under the allegations and evidence in the present case, an abatement or injunction might have been had under the law of 1915 (Code, § 58-109), or the "blind tiger" act of 1899 (Code, § 58-110), or both. The evidence as to the operation of the place, after the previous raids, in the same general manner and with the buildings still containing secret panels, traps, with other like evidence, was sufficient to sustain the allegations of the petition that the operation was "continuous, in flagrant violation of law." Because the proof shows continuity and intention to operate the place in violation of the law after the previous raids and confiscations, the present case is distinguished from Thornton v. Skelton, 149 Ga. 93 (99 S.E. 299). See also Bracewell v. Cook, 192 Ga. 678 (16 S.E.2d 432). There was no error in these special grounds for any reason assigned.

3. Another special ground complains of the admission of testimony of a witness who testified: "I have seen people come from his [Elder's] place under the influence of liquor. There was a fellow had a wreck out there and run into my rock wall. He said he come from there [meaning Elder's]. In a little bit a man came behind him. He said he wanted to race him down the road. Both men were under the influence of liquor. He said he was at Mr. Elder's place and he wanted to race him down the road and he wouldn't race with him. That was the first thing he said when he got out of the car." The objection urged was that "whatever may have been res gestae at Elder's would not be res gestae at Mr. Pressley's place." No objection was made that the testimony was hearsay and as such inadmissible. The objection as made and urged presents no question for decision by this court. Assuming that the admission of the testimony complained of was harmful, which we do not now decide, no question of res gestae is properly presented, and in the absence of objection to the testimony as hearsay, there is nothing in this special ground to be decided.

4. Following the testimony of a witness for the plaintiff as to the raid of September, 1944, the trial court allowed in evidence a pint and a portion of a pint of whisky over the objection that the law allows a man to have a quart of whisky in his possession if legally bought, and the contention of the defendant in the court below that Government whisky is presumed to be legal until the evidence shows otherwise. In admitting this evidence the trial court stated: "The whisky is admitted. It would be for the jury to say from all facts and circumstances whether or not it was lawful or unlawful possession, the law being it may be lawful to have and possess no greater quantity than that amount that has been testified to, provided that it is done for the purpose of one's own private consumption without any intention to use it for illegal or unlawful purposes." Under section 23-B of the Revenue Tax Act to Legalize and Control Alcoholic Beverages and Liquors (Ga. L. Ex. Sess. 1937-38, pp. 103, 122; Code, Ann. Sup., § 58-1073), it is provided: "It shall not be unlawful for any person to have and possess for use and not for sale, in any county of the State, one quart of the liquors and beverages described in this Act [Chapter], which may have been purchasedby the person for use and consumption from a lawful and authorized retailer and properly stamped, and this section shall be construed to repeal any and all laws in conflict with this section and Act [Chapter] as herein expressed." (Italics supplied.) One of the issues in the present case was whether the whisky was for personal use or for sale. Under the purpose for which the trial court admitted it in evidence, there was no error.

In the same special ground, it is insisted that it was error to admit in evidence several bottles of wine, some labeled "alcohol 18% and 20%," over the objection that there was no evidence of the sale of wine, but evidence only of the possession, the chairman of the county commissioners having testified that no election had been called for the people to vote on the question. Possession of the wine was not the primary or sole question in the present case; but possession of the wine in the quantities found may have been a circumstance to illustrate the contention of the plaintiff that the place was a public nuisance, especially since the other evidence disclosed that no license had been issued by the county commissioners for the sale of wine; and the quantity of wine found might have been a circumstance in itself for the jury to consider as to whether the place complained of was operated in violation of law. There was no error in admitting in evidence the whisky or the wine for any reason assigned by the plaintiff in error.

5. The plaintiff in the court below introduced in evidence certified copies of records maintained in the office of the Collector of Internal Revenue, purporting to show issuance to E. H. Elder, Elder's Pinellas, licenses as a wholesale and retail dealer in intoxicating beverages, bearing date from July, 1943, to July, 1944. This evidence was objected to on the grounds that the licenses had already expired, and that such evidence was nothing but a letter memorandum. As previously pointed out, the allegations and proof tended to show that the operation of the place in question was continuous over a period of months and years, and the continuity was one of the circumstances illustrating the character of the place of business. Under the circumstances, the licenses were relevant, even though they might have expired a few months before the last raid resulting in the padlocking of the buildings. Although there was an objection that the evidence was nothing but a letter memorandum, such evidence was in the form of certified copies of official records. It was not suggested or urged by the plaintiff in the trial court that there was higher or better evidence of the facts sought to be proved. For the reasons stated, no error appears in this special ground.

6. Objection was made to a portion of the testimony of Sheriff Camp as follows: "I believe it was a combination license. I took down the numbers and brought them in. I believe he also had a wholesale-whisky sign up over the door in the rear and down in the back where the entrance was. The agent with us said that it was a wholesale-liquor sign issued by the Government." The objection urged at the time to the admission of this testimony was: "They had Mr. Irvin on the stand and never offered to prove that fact by him. That would have been the highest and best evidence." Such objection as made does not suggest or urge that the testimony might not have been admissible on the ground of hearsay. The mere fact that the same testimony could have been given by some other witness does not show any valid reason why it was inadmissible under the objections actually made.

7. It is urged that the trial court committed error in admitting a regulation of the United States regarding classification as to the sale of wine and liquor, over the objection that it would not throw any light on the case because these are the rules of the Treasury Department and the license speaks for itself. The evidence tended to explain the two types of licenses which had been issued to E. H. Elder for Elder's Pinellas. For that purpose it was competent to go to the jury and there was no error in its admission.

8. It is insisted by the plaintiff in error that the trial judge erred because he explained the contentions of the plaintiff in greater detail than that of the defendant. Our examination of the charge as a whole does not show any unfairness in the proportion of statements as to these contentions. Where the contentions of the defendant were not minutely detailed they were stated in substance. The judge also told the jury that they would have the pleadings out with them, and they could gather for themselves the contentions of the parties. Woodward v.Fuller, 145 Ga. 252, 253 (1) (88 S.E. 974). In his charge, the trial judge further said: "I have stated to you, gentlemen, substantially the substance of the plaintiff's petition as amended and also the defendant's plea and answer. To gather the allegations of the parties in specific detail, you can and should read these papers for consideration, as you will have them out with you when you come to consider the case. They constitute the contentions of the parties, but are not to be considered by you as evidence in the case." In view of the foregoing, this special ground is without merit.

9. Error is assigned upon a portion of the charge, as follows: "Under the law, gentlemen, you are the exclusive judges of the weight of the evidence, and this being so, you will determine for yourselves where the greater weight or preponderance of evidence rests on any question you have under consideration." The complaint is that this charge was confusing to the jury in that it was not definite in its statement as to the preponderance of evidence and its resting place. In order to show that this ground is without merit, it is only necessary to quote the paragraph immediately preceding the one complained of, which preceding paragraph reads as follows: "And the preponderance of evidence by which the plaintiff is thus required under the law to satisfy your minds means the greater weight of evidence. The law defines it as being that superior weight of evidence upon the issues involved, which, while not enough to wholly free the mind from a reasonable doubt, is yet sufficient to incline a reasonable and impartial mind to one side of the issue rather than to the other."

10. It is complained in one of the special grounds that the trial court erred in submitting to the jury specific questions to be answered as their special verdict. This assignment of error asserts that the present case was not a true equity case, but was a statutory proceeding for the abatement of a public common nuisance, which does not require the interference of equity. It is further complained that there was no request for a submission of the questions to the jury for a special verdict, and that it was error to submit the same over the objections of opposing counsel, made at the time. In the trial of an equity case, the judge may, without request, require the jury for to render a special verdict on issues of fact involved. Robertson v.Aycock, 170 Ga. 524 (4) (153 S.E. 213). While the remedy of abatement or injunction in such cases as the present one is conferred by statute, the relief provided partakes of the nature of an equitable proceeding. The submission of particular questions for a special verdict in a case of the present type, may be, and usually is, in the interest of clarifying the jury's findings, as well as being helpful to the trial court in rendering judgments to give such findings effect. It is not pointed out in this assignment of error that there was any particular reason why the submission of the questions for a special verdict was harmful to the plaintiff in error. This special ground does not show error for any reason assigned.

11. A portion of the charge was as follows: "As to malt liquors, it is a violation of the law in this county for any person to sell beer without having first obtained a permit and a license from the local government authorities for that purpose. This being a place in the county not in a municipality or within the limits of an incorporated town, the Board of Commissioners of Roads and Revenues of this county would be the only government authorities which could lawfully issue to the defendant in this case at this place a license to sell beer. If this defendant at this place and in this county sold beer without having obtained a permit and license from the Board of Commissioners of Roads and Revenues of this county, that would be unlawful, and such sale would be a violation of the law." The plaintiff in error assigns error upon the ground that the court in its charge as to beer used the words "as to malt liquors," and then proceeded to charge on beer and its sale, and thus, as the plaintiff in error contends, confused the minds of the jury that beer was a malt liquor. The charge is not subject to the criticism made, and we do not think the court committed therein any reversible error.

12. Another portion of the charge was: "The law further provides that the delivery of the liquors and beverages mentioned in section 58-101, which I have just read, or any of them, from any store or building, if any part of the same is used as a public eating place, grocery store, or other place of common resort, shall be prima facie evidence of the sale or unlawful disposition." The plaintiff in error asserts that this instruction was error because there was no evidence of any sale of the prohibited liquors and beverages mentioned. There was ample evidence, circumstantial and direct, of such delivery of the prohibited liquors and beverages to authorize the charge under the Code, § 58-108.

13. It is urged by the plaintiff in error that the trial court erred in entering the decree, and particularly paragraph 3, as follows: "This decree and judgment are kept open for the purpose of considering an application by the defendant for a modification hereof, only for the purpose of converting said buildings and structure, or any part of them into residential building or buildings, and the defendant will be permitted to make such conversion under such provisions as may be further made only, and the said building or structure will in no event be permitted to be used for any commercial business of any kind." For the same reasons herein before set out, showing that it was not error to submit the questions to the jury for their special verdict, it was not error to mold the same into a decree. The whole decree being entered, the particular portion of the decree complained of was not harmful to the defendant in the trial court. He admitted in his answer that he was the operator of the place in question, and as to its operation the place was subject to be closed and padlocked, regardless of any deed that may have been submitted in evidence purporting to show that the title to the property in question was in the name of the wife of the defendant operator.

14. There was ample evidence to support the findings of the jury, and no error is shown by the general grounds.

Judgment affirmed. All the Justices concur. Head, J., concursin the judgment, but not in all that is said in the opinion.