Foster v. State , 70 Ga. App. 305 ( 1943 )

1. The defendant was found guilty of an attempt to commit the offense charged in the accusation. The pleading and the evidence authorized the verdict.

2. In his statement to the jury, the defendant contended that he had the large amount of liquor in question for his own use, and not for the purpose of selling it at retail, as charged in the accusation. Thus he set up that his act was an innocent one. The evidence of the other transactions, even though the law denominates them crimes, was admissible to rebut a possible inference of his innocent intention, or to rebut his defense based upon his statement, which sought to explain that his act of possessing distilled spirits and alcohol was an innocent act.

3. The defendant complains that there was no proof that Jack Foster, the person named in the former accusations introduced in evidence, was the same Jack Foster named in the present accusation. Neither in his pleading, nor in his statement, did he deny that he was the person named in the former accusations. "Generally speaking, identity of names is prima facie evidence of identity of persons." Williams v. State, 62 Ga. App. 679, 681 (9 S.E.2d 697).

4. The charge to the jury is not subject to the exceptions made for the reasons assigned.

DECIDED SEPTEMBER 15, 1943. REHEARING DENIED DECEMBER 13, 1943. The evidence for the State showed in part as follows: M. B. Petty, a police officer, testified that he arrested the defendant, who was sitting in an automobile off Marietta Street near the railroad yards. The automobile contained a case of whisky in half pints and some whisky in pints. "He had part of the pints loose in the front end of the car. . . He said he didn't have a license from the State to sell liquor as a retail dealer." Another officer testified that at the time of Foster's arrest he and other officers were trying to find out how soldiers coming through on troop trains were getting liquor. "I parked my car behind Foster's in front of 576 Marietta Street. . and saw a boy, William Smith, I learned he was, leave the car and go into the yards there, where we had a extra heavy troop movement . . leave Foster's car and go into the yard where the troop trains were standing, and he said something to the colored pullman porter. I had . . walked up to Mr. Foster's car and was standing in the rear of Mr. Foster's car. The negro said, ``How much is your liquor?' Foster said, ``I will let you have a pint for $1.85.' The negro said, ``That is too much. Then he saw me, and the negro walked back to the train stating he wouldn't give that much for it. I said to Foster, ``What have you got?' He said, ``I have a load of liquor I am trying to sell.' I said, ``Do you generally sell it that way?' He said, ``I generally take orders on the telephone to deliver it, but I am out here today to see what I can sell.'" The defendant's statement at the trial was as follows: "I am not guilty of selling that whisky, and not guilty of having it to sell. I had a case and part of a case that I bought that morning for my own use. As for the negro porter, there was no negro porter came about my automobile; and I am not guilty of the charge." 1. The accusation charged that the defendant "did sell as a retail dealer distilled spirits and alcohol without first obtaining a license from the State Revenue Commissioner." The Code, § 27-2303, provides: "Upon the trial of an indictment for any offense, the jury may find the accused not guilty of the offense charged in the indictment, but, if the evidence warrants it, guilty of an attempt to commit such offense, without any special count in the indictment for such attempt." The defendant was found guilty of an attempt to commit the offense charged in the accusation. The pleading and the evidence authorized the verdict.

2. The State introduced two former accusations on which the defendant was found guilty: (1) For controlling spirituous and alcoholic liquors, and (2) for selling distilled spirits and alcohol as a retail dealer without paying the State license tax. Each accusation alleged an offense on a different date. The defendant, in his statement to the jury, contended that he had this rather large amount of liquor for his own use and not for the purpose of selling it at retail, thus setting up that his act was an innocent one. We think that the evidence of the other transactions, even though the law denominates them as crimes, was admissible to rebut a possible inference of his innocent intention, or to rebut his defense based upon his statement, which sought to explain that his act of possessing distilled spirits and alcohol was an innocent act. We might add that these previous transactions tended to illustrate, characterize, and rebut the explanation of the defendant as to his acts on the day charged in the present accusation. Where the acts of the defendant are capable of more than one construction, his former acts, as disclosed by the other accusations introduced in evidence, were relevant for the jury to consider in determining whether his act on the day in question was, or was not, an innocent one. The other transactions tended to illustrate, characterize, and explain the defendant's act, which was capable of more than one construction. Thus the court did not err in permitting this evidence to be introduced for that purpose.Lewis v. State, 57 Ga. App. 340 (195 S.E. 285); Phillips v. State, 51 Ga. App. 678 (181 S.E. 233); Sykes v. State,112 Tenn. 572 (82 S.W. 185, 105 Am. St. Rep. 972, 997). Of course evidence of other distinct crimes is not admissible to raise an inference of guilt of the crime on trial, and the jury are forbidden, although they have evidence of other criminal transactions which were allowed for the purposes above indicated, to convict the defendant upon "general principles as that expression is sometimes used in general parlance." Harrison v.State, 60 Ga. App. 610, 614 (4 S.E.2d 602).

3. The rulings announced in headnotes 3 and 4 require no elaboration.

Judgment affirmed. Broyles, C. J., and Gardner, J., concur.