Flynn v. State , 77 Ga. App. 791 ( 1948 )

1. The court having correctly defined circumstantial evidence and instructed the jury on the degree of proof necessary to sustain a conviction on circumstantial evidence, it was not error to omit further instructions elaborating upon it or attempting an explanation of its meaning.

2. A special ground of the motion for a new trial complained that the court erred in allowing in evidence testimony that in November, 1947, subsequently to the return of the indictment in July, an officer had found a pint of non-tax-paid liquor "right out back of the defendant's house." The court did not err in admitting this testimony over the objection that it was immaterial, irrelevant, and prejudicial, as the facts stated therein were a circumstance which the jury were authorized to consider in connection with the other evidence in determining as to the guilt of the accused.

3. The jury were authorized to find that all the facts and circumstances in the evidence, when considered as a whole, excluded every reasonable hypothesis other than that the defendants were each guilty of possessing non-tax-paid liquor, and the court did not err in overruling the motion for a new trial for any reason assigned.

DECIDED OCTOBER 22, 1948. The defendants, Harlie Flynn, Mamie Flynn, who is the wife of Harlie Flynn, and Odell Battle were jointly accused in two separate indictments. On the first indictment, which was for a misdemeanor, in that they possessed on June 14, 1947, a quantity of non-tax-paid liquor, the jury returned a verdict of guilty against each of the defendants. On the second indictment, which was for a felony, in that they on June 14, 1947, unlawfully made and distilled a quantity of intoxicating liquors, the jury returned a verdict of not guilty as to each of the defendants. The defendants filed a motion for a new trial on the general and six special grounds, which after a hearing was overruled. To the judgment denying them a new trial, they except.

On the trial Marshall Bryant testified for the State, in part: "On June 14, 1947, I went to a distillery in . . Cobb County. That distillery was located right back of Harlie Flynn's house, about 400 yards back of his house. . . Just before we got to the house . . I got out of the automobile and went down through the woods back of the house, and I told the boys to give me time to get into the woods, and they drove on to the house and I went down, and just as I was getting to the spring I heard a gun shoot, and when I heard the gun shoot they went out of the woods and went down towards the swamp. . . I mean that these two men here, Harlie Flynn and Odell Battle, went out of the woods. . . Right at the spring I hit a trial that went right straight from the spring over the hill right over to the still. There was about a half a gallon of whisky at the still in a gallon jug. There was paper and . . wood in under the still, . . and the fire had just burned out of the paper and the wood had never caught up. . . I did not myself see Battle and Flynn leaving the still, but they was going out of the woods in the direction of the still, going down in the direction of the river when the gun shot. I could not tell if they had anything on their person. . . This path I picked up at the spring led right straight on to the still, and from the spring to the house where Flynn lives. . . There was cans and jugs all the way from the spring over to the still, . . and a case of fruit jars, half-gallon case, the same thing that was at the house. From the spring to the house, there is a back yard there, and that goes down to the spring. . . The branch comes down right at the back yard at the house and this spring is in the bank there. . . Flynn was living there at this house; I don't know whether this other boy was living there or not, but he was there, and Flynn's wife was there. We didn't find anything there at the house that could be used in the manufacture of liquor other than these containers; but there were jars there all around the place, some under the house, some there around the field, they were all around it. . . Those jars there were Mason fruit jars, and Balls. . . I never examined all of them to see if they were the same brand or not. This distillery I would say was about 400 yards back of that house. . . There were two paths [to the distillery], and both of them led back out right at the spring, and no other paths went in there, other than to the house. [The still was a thousand-gallon ground-hog type.] . . It was full of mash, and then there was fruit jars there at the still . . Some of the same type of jars that were at the home and in the field. . . From my observations of that still site there and from my experience as a deputy sheriff in investigating other distilleries, I would say that in my opinion liquor had been made there at this place for a period of time not over three weeks — very little had been made there. . . I got out [of the car] up the road from the river about . . hardly a quarter of a mile. . . There is a woods road there, that goes down there about as far as the front of the courthouse yonder, and there was a big tree across that old woods road. . . That is grown up. You might walk up there probably, but you couldn't drive any automobile up the river there. . . There was an old road here, where I am telling you about. When you cross the river there and start through there where this road [the Bolton Highway known as the Gordon road] leaves the old road, they did have to cut a big cut through there. . . Just as you come off of the river bridge. . there is a big hill . . and there is a flat place here, and then going right straight north . . is where the Flynns live; and right straight out at the back of the house . . when you get to the branch going out there, that is where the spring is, where they get water. . . There is a corn patch there between that and the river. [The branch runs from the spring at the back of the house cast along the back side of the corn patch to the river.]. . I have never said you could see that spring there from the house. There is a table in there before you get to the branch, and that table is where people have picnics, or could have, I guess . . but the only thing I have ever seen there was drunks lying around that table, and one lying beside the table one day. . . From that table there it is just a little ways up there to that spring, and people go there to that spring to get water. . . There wasn't anybody there to keep them from it [going to the spring to get water]. To get to this spring . . from Gordon road, you would have to go through the woods . . but you could go through his [Flynn's] yard and go to the spring. But you have to go through the woods if you go any other way. [There is a swamp between the table and the river.]. . The spring was in about twenty feet of where the still was at. . . The still had been operated. . The beer that was in this ground-hog distillery there was fermented into an intoxicating stage at the time I found that distillery, and it was ready to run. . . We were down there at this place around three o'clock in the afternoon, Saturday afternoon. We were not there in the morning nor at noontime. At this distillery there were some pint bottles. As to whether or not there were any pint bottles at the house similar to the ones this liquor was in — well, I don't say at the house, but right back of the house; and just below the spring there, there was some out there where they had been washing them. They had a little hole of water there where they had been washing them at, and laying them up there on a little board. . . I saw some beagle pups down there. They were in a pen right out back of the house . . when I saw them. . . Along in November of last year [1947, following the raid in June] we found some liquor down there at this place, one pint right out back of his house. . . I didn't find any liquor at the house then; I said it was at the spring, out back of the house. This pint that I spoke about there was just a little to the right of the spring. . . There was an old road just up above that. This was 12 or 15 feet from that old road. There was no travel on that old road. . . As to any evidence of liquor that we have found around his place there — well, we go down there and we find stump holes where they have pulled the whisky out from there, where cans have been in there, and the leaves where they are raked back where they had it hid, and holes all around there, all over the woods, and about the house. I said you could find holes in the ground around there, and you can see where there has been cans in the holes. We didn't find no whisky in the holes, but you can see where the cans has been down in there. . . You can see the prints there where the jars has been down there. I can't swear that there was cans in there, but there was holes all over there."

Roy McLarty testified for the State in part: "When we got down there [on June 14, 1947], we let Marshall out, like he told you, and he went around this little hill, and Bill and Marvin and I went on down there and we had a search warrant, and we told Mrs. Flynn and showed her the search warrant, and we went around the little old kitchen there. She was the only one at the house. We began to search, and just outside there, there was a little room by the side of this other room they live in, and we were in there where there was a whole bunch of fruit jars, and about that time we heard a gun shoot and we ran outside. She was back in there, and she shot out of the little window back towards the river, and right after the gun shot we heard somebody running back down towards the river, and I went back there, and that is where I found this 27 or 28 pints in an old sack where they set it down. I heard the noise of the bottles and just in a few minutes I saw them coming up across the river bottom there, Mr. Battle there and Mr. Flynn, coming back towards the cabin. I went on down there then and found that whisky. That was all white corn whisky, bootleg whisky, non-tax-paid whisky. There was no one else there except Flynn and Battle at the time I heard this noise of this sack being set down with the 28 pints of non-tax-paid liquor in it; they were the only ones, and they came up from that direction, and they were the only ones we saw. And at the time that gun fired there at the house, there was no one else there except Mrs. Flynn and me and the other officers. And as to the house there, in this adjoining room there was a whole bunch of fruit jars, and some of them appeared to have been emptied recently, and they had the odor of liquor on them. I would say there were forty or fifty fruit jars there in the house, and while I wouldn't say they all had the odor of liquor on them, but a lot of them did have the smell of liquor on them, for I smelled of several of them. We didn't find any liquor in the house there; all we found was in that sack that was set down there with the 28 pints in it. Around the house we found some empty containers, under that little cabin there, and you could see other fruit jars around there. I later went down to this distillery. . . There was a distinct path there that led over that way from across by the spring . . and there was no other paths other than that one going into that distillery. There was none other going in there except from the house, except when they came back [from] where they went with that whisky, there was a path there, and that came back to . . the house. Other than those two paths I spoke of there was no other paths going into that distillery. . . As to whether it is anything unusual to find a fruit jar at a place — well, not one or two fruit jars, but when you find a whole lot of them, and where there has been a right smart of whisky, that is a little bit unusual. . . There wasn't any canned fruit in any of those jars we found there, not even one. There was a few drops of liquor in them, just enough to make it smell. . . There was a path or little road that came down here [to the table near the spring and still] the way Mr. Bryant came down there beyond the still. This path led from the Gordon road, kinder northeast, and this still we found was on the north side of that. Mr. Flynn lived on the south side. . . As to whether I know or not that there was anybody else down there on that river bank, and boys or other people down there fishing, and who were shooting a gun down there — well, we went down there and there wasn't anybody else down there. . . We went all around there. And I mean to say that I didn't see anybody else there at all other than these two men coming back up that way. . . There wasn't any gun fired down there on the banks of that river. I say that because I could tell by the sound. The river there is as far from this cabin as from here to that park out there, and there is a cornfield between this man's house and the river. . . While we were there at this house some automobiles came up there and saw us and left. There were something like two or three of those. They left there hurriedly, went on off. . . I don't know what they came there for."

Bill Cogburn testified for the State: "I was . . . down there on this occasion of June 14, 1947. . . We searched the house. . . I smelled a few of those [cans or containers] that had the odor of liquor on them. I also saw some jars around under the house there. While we were searching this house there, there was a gun fired there from within the house. At that time the only other person there besides the officers was Mrs. Flynn over there. . . I was in this little room there when this gun fired and I went on the outside, and then I saw Mr. Flynn and Mr. Battle come back from towards the spring. . . I didn't hear the noise of any bottles rattling in that direction. . . I saw the liquor that [Roy McLarty] got down there. . . That was non-tax-paid liquor. . . I did not hear anybody say to these people there that they were being arrested for seining. . . I saw two or three cars come there while we were there, but they didn't get out, they left. I saw them drive up there and then back off. I don't know [what they came there for]."

Marvin Lester testified for the State: "I was down there at the spring when I heard the gun fire. The noise of that gun came from back, out there at the house where these boys lived. As to whether or not I heard someone running through the woods at the time when I heard the gun fire — well, it was something like five minutes, I was coming from the spring going down the branch looking around down there, and Mr. Bryant was across the branch, and I come on down there, and I heard somebody running, about the time Mr. McLarty was getting down pretty close, and he says I heard somebody running down here, and I says, `I heard the rattling of some bottles,' and he says, `I did too.' . . I seen Flynn and Battle coming from across the cornfield, from towards the river. I did hear the noise of those bottles dropping on the ground there [back of the house]. . . Right above the spring there is an old roadway. That goes east, goes on up there where the spring was."

Grady Duncan was placed upon the stand for the defendants, and after statements concerning the locality of the still and the Flynn house, among which was that the Flynns lived on "the old Sewell place" and that the still was on the "Carroll property," testified: "That spring is back kinder northwest of the Flynn house . . and the branch comes out from that spring and turns to go to the river. On the south side of that is where Mr. Flynn and his wife live. There at this spring they have got tables there and benches and a barbecue pit built out there near the spring where people can go and have picnics there. The public uses that place, anybody that wants to go out there and have a fish-fry, he lets them go out there and fry them. There is an old road that leads off from the Gordon road and goes down to this spring. . . That goes out right at the upper end of the cut [in the new road embankment] leaving the river up there. They could go that direction to get to this spring. That road just goes down to the bottoms and stops down at the river. . . As to whether it [the still] is anywhere within the scope of the branch and spring where Mr. Flynn lived, or . . right in there — no, sir, not right close. I would say it is around a quarter of a mile from the Flynn place over to where I saw this still. [The officers testified that it was about three or four hundred yards to the spring and still from the Flynn house.] . . I was down there fishing with Odell Battle [one of the defendants] that boy sitting right yonder, when the officers came down there at the bridge, around the bridge, fishing. . . While we were there Mr. Battle went to get some water, and I stayed around there on the river a right smart while. . . Well, there was a bunch of boys that stayed on the river all the time, firing a rifle . . From where I was, if there had been a gun fired up there at the Flynn place, I could have heard it. But this firing was down on the river bank. . . Mr. Flynn operates a business there; they have got a little stand there, and in the summertime they sell fish and watermelons and things like that. . . They live right there at this spring, but to get to that spring you would have to go by his house and go around a bend out there where the spring is. I have seen other people going in to that spring there numbers of times." On cross-examination the witness testified: "Flynn sells drinks there, cold drinks, watermelons in the summertime, and fish. He doesn't sell anything else that I know of. As to whether or not he had a stand there on June 14th — well, he was selling fish, fish suppers; he had the fish suppers out back of his place there, close to the spring, and he would let people go out there and fry them. He would sell them the fish. . . When I went over there to where [the still] was I was just by myself, going through there, rabbit hunting. . . I saw a path before I got to the distillery. I did not follow that path from there back towards the spring, to see whether it went to the spring or not. I wouldn't say which way that path went. . . It just went around through the woods there, what I seen of it. The one I saw leaving the distillery was just circulating around through the woods there. . . Battle was there [on the river]. He was fishing with me, and he walked up there to get some water, and I came up there later when he didn't come back, and I found out later they had picked him up. He went after some drinking water, and I was staying on fishing while he had gone after some water. . . To the best of my recollection I would say that was around 9:30 or 10 o'clock, . . I laid down and went to sleep while he was gone. . . I imagine it was around 10 or 11 o'clock, something like that. I wouldn't be positive that it was between 10 and 12 o'clock. I won't say whether it was in the morning or around noon. I won't say it was later than noon or not. It could have been later than noon, I just don't know. All of us down there on the river can't tell what time it is, unless we have got a watch."

H. C. Gillam testified for the defendants that he had seen some colored boys go in the direction of the still east of Gordon road last summer, and that both of them had a sack. He said: "I did tell Flynn about seeing those negroes when I got there [to Flynn's place). . . I told him I seed some negroes with white sacks going across the field. That did not excite him any, or he didn't seem to be excited, but I don't know; he didn't show it."

R. C. Allen testified for the defendants in regard to the old road going down by the spring and the still. He said that it had a log across it, as testified by deputy sheriff Bryant, but stated that it was a public road and that the log could be moved when one wished to pass through the road. He also stated that he was Flynn's son-in-law and that he brought a part of the jars which were found at the Flynn house so that Mrs. Flynn could can meat for him. Roy Flynn, the brother of the defendant Harlie Flynn, testified that Flynn was employed and was working for a living. There was also evidence introduced as to the good character of Odell Battle.

In his statement to the jury, Harlie Flynn relied in his defense upon the following: "I was down below my house at this time, running my little beagle dogs that morning, after I got off from work, and I came on back up there, I seen somebody up there in the yard, and I came right across that corn patch. . . I met Mr. McLarty . . and he says, `We are down here searching.' . . He said he was gone five minutes, but he was gone about forty-five minutes, and he brung that liquor back up there. And he says, `you set your liquor down,' and I says, `I ain't set no liquor down — I ain't never had no liquor.' I never made no liquor in my life. . . I am not guilty with making no liquor. And they have searched time and again down there and never have found anything at all." Odell Battle stated to the jury: that he was fishing down on the river with Grady Duncan, and started up to the Flynns to get some water; that while on the way he met Flynn, who was in the cornfield with a bunch of little beagle dogs; that they came up across the field together; that the officers told him that he was being arrested for seining; and that he "didn't know anything about any liquor at all." Mrs. Mamie Flynn stated that she had never owned a rifle and had never shot one in her life. 1. In special grounds one, two, four, and six the defendants amplify their contention in the general grounds that the evidence does not authorize the verdict, and say that the circumstantial evidence which was introduced by the State, and upon which they were found guilty of possessing non-tax-paid liquor, was insufficient to exclude every other reasonable hypothesis save that of their guilt.

From the evidence and the statements of the defendants, which we have hereinbefore set out, the jury were authorized to find: that Marshall Bryant saw Harlie Flynn and Odell Battle going out of the woods toward the river, though he did not actually see them at the still nor did he see anything which they may have been carrying; that Mrs. Mamie Flynn fired a gun to warn of the approach of the officers; that the officers heard someone going through the woods and heard bottles rattle when they were set down, and subsequently found 27 or 28 pint bottles filled with non-tax-paid whisky; that Flynn and Battle came up across the cornfield together from the direction of the river toward which they were headed when Bryant saw them and from which came the sound of the rattling bottles; that numerous pint jars were found around the Flynn yard and premises, some with the odor of liquor therein; that several automobiles drove up and left hastily at sight of the officers; that while there was an old road going by the spring, it was closed off by a log, and that the most frequented paths thereabout were those from the Flynn house to the spring and from the spring to the still; that Flynn's defense of being hunting with his dogs was discredited by Bryant's testimony that the dogs were in a pen back of the house when the raid was made; and that Battle's defense, that he was just coming up to get water when he ran into Flynn and came on up with him, was discredited by the fact that Battle's corroborating witness became confused upon cross-examination as to the time of Battle's leaving to go for water, and also by Bryant's testimony that he saw the two going down out of the woods toward the river together, and by Bryant's testimony that the raid was in the afternoon, and not in the morning.

We think that the jury were authorized to find that these and other circumstances appearing in the evidence, when considered as a whole, excluded every reasonable hypothesis save that of the guilt of each accused.

2. The court charged the jury: "Now, gentlemen, the object of all legal investigation is the discovery of the truth. Direct evidence is that which points immediately to the question at issue. Indirect or circumstantial evidence is that which tends to establish the issue by proof of various facts and circumstances sustaining by their consistency the hypothesis claimed. Before you would be authorized to convict upon circumstantial evidence alone, the proven facts must not only be consistent with the hypothesis of guilt, but must exclude every other reasonable hypothesis save that of the guilt of the accused." The defendant contends in special ground three that this charge was error, on the ground that the court did not therein instruct the jury "that the evidence should be so conclusive as to exclude reasonable doubt," because "the proved facts, together with the statements of the defendants, clearly establish an hypothesis consistent with his innocence and sufficient to create a reasonable doubt of their guilt."

Code § 38-109 defines the degree of proof necessary to sustain a conviction on circumstantial evidence, and is as follows: "To warrant a conviction on circumstantial evidence, the proved facts shall not only be consistent with the hypothesis of guilt, but shall exclude every other reasonable hypothesis save that of the guilt of the accused." The court elsewhere in its charge instructed the jury that "the burden of establishing the defendant's guilt by proof to a moral and reasonable certainty and beyond a reasonable doubt" was upon the State; and it here, in the charge assigned as error, gave the correct definition of direct evidence and indirect or circumstantial evidence (Code, § 38-102), and charged the jury in the words of Code § 38-109 on the degree of proof necessary to sustain a conviction on circumstantial evidence. It was not error to omit further instructions elaborating this portion of the charge or attempting an explanation of its meaning. Martin v. State, 193 Ga. 824,830 (20 S.E.2d 266); Lanier v. State, 141 Ga. 17 (1) (80 S.E. 5); Seats v. State, 122 Ga. 173 (3) (50 S.E. 65); Moughon v. State, 57 Ga. 102, 103 (6); Dyer v.State, 71 Ga. App. 41, 42 (29 S.E.2d 922). This ground shows no reversible error.

3. The defendants were on trial under an indictment filed July 23, 1947, charging them with having, controlling, and possessing on June 14, 1947, non-tax-paid liquor. The court allowed in evidence testimony that in November, 1947, an officer found one pint of such liquor "right out back of his [the defendant Flynn's] house," over the objection that it was immaterial, irrelevant, and prejudicial to the defendants, the finding of such non-tax-paid liquor having occurred subsequently to the return of the indictment under which the defendants were on trial. The overruling of this objection is assigned as error in special ground five.

The court admitted such testimony with the statement: "If it occurred subsequent to this indictment, no conviction of the defendants could be based upon this testimony"; and the court in its charge specifically instructed the jury to this effect. The court did not err in admitting the testimony, as the fact stated therein was a circumstance which the jury would be authorized to consider in connection with the other evidence in the case in determining the guilt of the accused in having, possessing, and controlling non-tax-paid liquor as charged in the indictment.Cole v. State, 120 Ga. 485 (48 S.E. 156); Jones v.State, 32 Ga. App. 7 (122 S.E. 738); Jenkins v. State,24 Ga. App. 542, 543 (2) (101 S.E. 691); Craig v. State,9 Ga. App. 233 (70 S.E. 974). This ground is not meritorious.

4. The evidence authorized the verdict finding the defendants each guilty of possessing non-tax-paid liquor, and the court did not err in overruling the motion for a new trial for any reason assigned.

Judgment affirmed. Gardner, J., concurs. Townsend, J.,concurs specially.