English v. State , 59 Ga. App. 563 ( 1939 )

Broyles, C. J.

The defendant was convicted of possessing whisky. The accusation charged that the offense was committed on August 29, 1937. The accusation was founded on an affidavit executed on August 31, 1937, and the accusation bore the same date. The special grounds of the motion for new trial complain of the admission of evidence showing that on two separate occasions, about six months subsequent to the filing of the accusation, whisky was found in the defendant’s place of business. Under the facts of the case the evidence was properly admitted. Other evidence in the case showed that on two other occasions, within the statute of limitations, ánd prior to the filing of the affidavit and the accusation, the defendant was found in the unlawful possession of whisky, and that the defendant’s place of business had the reputation of being a “bootlegging joint.” When the evidence complained of was objected to, the solicitor said: “Your Honor, I want to make the statement that I am offering this evidence for the purpose of showing the guilty knowledge of the defendant, motive and intent to violate the laws of this State.” And the court in admitting the evidence made the following statement: “Any raid within two years prior to the filing of this accusation would be admissible; anything after that time would be admissible to show motive and intent on the part of the defendant.” The plaintiff in error did not specify the charge of the court as a material part of the record to be transmitted to this court, and the charge is not before us. Under these circumstances it will be presumed that the court properly instructed the jury that evidence showing possession of whisky on occasions subsequent to the filing of the accusation should be considered by them only for the purpose of showing the intent and motive of the defendant in possessing the whisky alleged to have been found in his place of business prior to the date of the accusation. The defendant, in his statement to the jury, denied that he was knowingly in possession of any whisky on the occasions, prior to the date of the accusation, when the whisky was found in his place of business. In Hayes v. State, 36 Ga. App. 668 (137 S. E. 860), this court made the following ruling: “In a prosecution for possessing intoxicating liquor it is not error to admit evidence that on other occasions, both before and after the date of the offense charged in the accusation, such liquor was found in the possession' of, the accused. . . This is true even though the evidence shows that the liquor was found in the possession of the defendant on the day of the trial.” See also the numerous cases cited in that decision. It follows from what we have ruled that the special grounds of the motion for new trial were without merit. The evidence amply authorized the verdict, and the refusal to grant a new trial was not error for any reason assigned.

Judgment affirmed.

MacIntyre, J., concurs. Guerry, J., dissents.