Bell v. State , 72 Ga. App. 848 ( 1945 )

1. "Every fact or circumstance serving to elucidate or throw light upon the issue being tried, constitutes proper evidence in the case."

2. The current authority in this State is, in cases of doubt as to the admissibility of evidence, to admit it, and leave its weight and effect to be determined by the jury. Here, the judge did not commit reversible error in admitting the testimony excepted to, for the reasons urged in the only ground of the amendment to the motion for a new trial.

3. The evidence supports the verdict.

DECIDED SEPTEMBER 27, 1945. Louise Bell was convicted of possessing and controlling spirituous and intoxicating liquors, and also of selling such liquors, under an accusation brought in two counts. She moved for a new trial, the motion was overruled, and she excepted. The testimony and the defendant's statement were as follows: Coleman testified for the State: "On the — day of March, 1945, I went to the store of the defendant, in Eastman, Dodge County, Georgia, with a strange negro, and bought from the defendant a pint of shine liquor for three dollars. I know it was liquor because I took a drink of it, and it tasted and smelled like liquor. I took the drink around at my house. I bought the liquor late Saturday afternoon. I ran up on this negro in negro quarters, and he told me he wanted me to buy him a pint of liquor. He gave the money to me to buy the liquor with. After I bought the liquor, he went with me to my house and I took a drink. He then left me. Pretty soon after that ``the law' got me and arrested me. Up here at the jail, the officers went through my money and got three one-dollar bills. They later gave them back to me. They didn't find any liquor on me when I was arrested." Higginbotham testified for the State: "I am a county policeman of Dodge County, and on that Saturday night Sheriff Peacock sent me and deputy-sheriff Mullis to the store of Louise Bell to search her place for liquor, and for the money which was supposed to be marked. Louise allowed us to search the place for liquor, and we made a thorough search and found none. She told us that she had no paper money, but only some silver. We didn't find any paper money, and her appearance did not lead me to believe that she had any on her person. We told her that we would want to search her house also, to which she agreed, and she went with us. We didn't find any whisky at her house. I then went back to the jail, and sheriff Peacock told me to go and arrest Louise Bell, which we did." Peacock testified for the State: "I am sheriff of Dodge County. I gave a negro three one-dollar bills, after I had taken down the numbers on the bills, and told him to go buy some whisky in negro quarters. I first gave him two dollars, and he came back and said he had to have another dollar. Later on he came back and we arrested Coleman about the liquor. We then arrested the defendant in this case, after officers Higginbotham and Mullis had searched her store and home. While Louise was in jail, Coleman said that he bought the liquor from her, and she didn't say anything. The following Monday, after I had had Louise arrested again, Louise told me that she thought some of the officers searching her place on Saturday had taken about $100 in currency from her place of business, while she was away from it under arrest." The defendant made the following statement: "Gentlemen, I have not had any liquor and I have not sold any liquor. I have lived here and been in business for ten or fifteen years, and I have never fooled with liquor. I didn't sell Coleman any whisky. On that Saturday afternoon, Coleman and this strange negro came in my store about three o'clock, and Coleman says he wants to pay his wife's bill. He was drinking at that time. I just joked with him and told him it was $50. It was really about four or five dollars. I don't know who this strange negro was. He tried to turn on the radio, and I told him to leave it alone, that he would break it. They both went out after that. My sister was the only one in the store at that time besides us. When they arrested me and R. C. [Coleman] that night, up at the jail I asked Coleman why he wanted to tell the sheriff he bought that liquor from me when he knew it wasn't so, and he said that he was afraid that the sheriff would beat him. About this money, Mr. Ollie B., the sheriff, is talking about, I thought that maybe the officers, when they were searching my place after I was arrested, found this money and had taken it to keep safely for me until I could get out of jail. It was not my money, it was some rent money that I had been collecting and keeping for others." 1. The defendant objected to part of the sheriff's testimony, as follows: "The following Monday, after I had had Louise arrested again, Louise told me that she thought some of the officers searching her place on Saturday had taken about $100 in currency from her place of business while she was away from it under arrest," on the ground "that said evidence was immaterial, irrelevant, and highly prejudicial, that it brought into the case a charge by the defendant, a woman of color, that the white officers of the law had stolen money belonging to the defendant."

If, in fact, the defendant had the paper money in her possession at the time of the search, and a part of the money was the one-dollar bills given to a negro by the sheriff with which to buy whisky, this fact, while not decisive, would be a circumstance which the jury would be authorized to consider, together with the other circumstances, in making their verdict. The fact that, at the time the officers were searching for the three marked one-dollar bills in question, the defendant denied that she had any paper money (which, of course, was a denial that she had the three marked bills), and later she inadvertently or deliberately, when she thought the $100 in paper money was missing from her place of business, stated to the sheriff that she had such paper money at the time of the search and that it was now missing — this, if the jury believed from the whole evidence that she concealed the paper money in order to prevent the officers from discovering the marked bills, would have made the testimony relevant, and its weight and effect would be for determination by the jury. The jury would have been authorized to find that it confirmed the State's testimony, or, at least, weakened the defendant's case. Keener v. State, 18 Ga. 194,226 (63 Am. D. 269). Under the rule that "every fact or circumstance serving to elucidate or throw light upon the issue being tried, constitutes proper evidence in the case" (Sample v. Lipscomb, 18 Ga. 687), and the further rule in Gilmer v.Atlanta, 77 Ga. 688 (1-a), that, "in cases of doubt as to the admissibility of evidence, the current of authority in this State is to admit it and leave its weight and effect to be determined by the jury," we do not think that the judge committed reversible error in allowing, over objection, the testimony urged.

2. The evidence authorized the verdict.

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