McBrayer v. State , 79 Ga. App. 132 ( 1949 )

It was reversible error for the trial court to admit, over objection, certain evidence as to the general reputation of the defendant.

DECIDED APRIL 21, 1949. 1. The defendant was convicted of possessing non-tax-paid liquor — whisky. The defendant introduced no testimony, but made a statement. His amended motion for a new trial was overruled. To this judgment he assigns error. We think that the case should be reversed on the two special grounds, and will not discuss the general grounds. The State's evidence tended to show that the non-tax-paid whisky was found in the dwelling house and on the premises of the defendant. Over his objections, duly made, the State was permitted to show by two witnesses that the house and premises of the defendant had a bad reputation in the community with reference to "bootlegging liquor." After the evidence was admitted, over objections, counsel for the defendant asked for a mistrial, and further urged that the testimony was irrelevant and immaterial, and served no purpose except to prejudice the jury and to inject the character of the defendant into the case. The defendant had not put his character in issue. We think that the admission of this testimony was illegal and requires a reversal of the case. The State cites and relies upon, to sustain its position in introducing this evidence, the case ofHarper v. State, 41 Ga. App. 331 (153 S.E. 84). We do not think that case, under its facts, is authority for admitting the evidence objected to in the instant case. It will be noted that Harper did not live at the house in question in that case. Here, the house and premises involved were the dwelling house and the premises surrounding it of the defendant.

2. This case went to the court as a whole for decision. In conference on the case the court discussed and considered Lee v. State, 8 Ga. App. 413, 418 (69 S.E. 310). The question there involved concerned distinct and separate acts of the accused in violation of the act regulating narcotic drugs. It was held permissible to show that the defendant therein repeatedly violated this act in prescribing or administering narcotic drugs. The facts of that case do not touch the issue here involved. Therefore it is not in point. Also, the cases of Fitzgerald v. State, 10 Ga. App. 70 (72 S.E. 541), and Smith v. State,52 Ga. App. 88, 91 (182 S.E. 816), were considered. We mention these two cases together because they involved the question of lewd house under the Code, § 26-6102. The facts of those cases shed no light at all, as we see it, on the issue before us. Also,Phillips v. State, 51 Ga. App. 675 (181 S.E. 233), was discussed. A perusal of the facts in that case shows that it is not in point and does not illustrate in any way the issue we are now considering. The facts in Thrasher v. State, 68 Ga. App. 820 (24 S.E.2d 222), as we view the case, shed no light upon the issue before us. Also, in Cole v. State, 120 Ga. 485 (48 S.E. 156), the question involved was whether search of the house of the accused on a day subsequent to that on which the accused was charged with the sales of liquor, and when liquor was found there, was admissible as a circumstance against the defendant. These were specific, similar acts and do not illustrate at all, as we view the case, the issue now under consideration. We might add also here that in the case ofGarrett v. State, 75 Ga. App. 577 (1) (44 S.E.2d 153), this court said: "The term ``bootlegger' denotes one who engages in the illegal sale or handling of intoxicating liquor in territory where its sale is prohibited, and is not restricted to one who peddles liquor." Under this definition of bootlegger, one whose dwelling house has the general bad reputation for "bootlegging liquor," to our way of thinking, puts his general reputation in issue for being a bootlegger. It must be kept in mind that there is no such crime under Chapter 26-61 as maintaining or keeping a bootlegging house; there is for keeping a lewd house and for keeping a disorderly house. To maintain a disorderly house under the Code, § 26-6103, requires more than the control and possession of intoxicating and prohibited liquors on which the revenue stamps had not been affixed, as charged in the indictment in the instant case. See the citations under this Code (Ann.) section. See, in this connection, Cason v. State,60 Ga. App. 626 (2) (4 S.E.2d 713); Fanning v. State,17 Ga. App. 316 (2) (86 S.E. 731). Therefore it follows, we think, clearly, logically, and legally, that the court committed reversible error in admitting, over objections of the defendant, evidence that the general reputation in the community of the defendant's dwelling house was bad for "bootlegging liquor." It, in effect, put his general reputation for being a bootlegger in issue, when the defendant has not done so. Of course, similar and separate acts, as an exception to the general rule, are sometimes in a proper case admissible, even though they do involve the reputation of the defendant.

The judgment of the trial court overruling the motion for a new trial is

Reversed. Sutton, C. J., and Townsend, J., concur. Felton,J., concurs specially. MacIntyre, P. J., and Parker, J.,dissent.