Moore v. State , 79 Ga. 498 ( 1887 )

Bleckley, Chief Justice.

1. The accusation has but a single count, and alleges a sale made on the first of May, 1887, to,££ Charley Harper, and other persons.to deponent unknown.” By a liberal construction it may embrace a joint sale, or a several sale, or both, or a plurality of either, or a plurality of one with a unit of the other, or a plurality of both, made at the same time; but it gives no hint of several sales made at different times, and in one of which Harper was concerned, and in the other not concerned, nor even so much as present when it took place. The court, however, (as we infer from the record and from the argument of counsel,) both in admitting evidence, and in charging the jury, treated the accusation as having this wide range, that'is, as covering two transactions occurring at different times, with the first of which, according to some of the evidence, Harper was connected, but to the second of which, according to to all the evidence, he was no more related than he was to the battle of Brandywine. Every sale, when constituting a separate and distinct transaction, is a distinct offence, and conviction for a sale to one person is no bar to a prosecution for a- subsequent sale to a different person. Downing vs. The State, 66 Ga. 160; General Local Option Act §§6, 10.

On the trial of an accusation for a misdemeanor, charging the sale cf liquors on a specified day to a named person, and other persons to the accuser unknown, a joint sale to both, or a several sale to either, made in any transaction in which the named person participated, may be established as a basis for a conviction, but not a several sale to a person, known or unknown, made when the named person was not present, and in which he was not concerned.

2. There was evidence tending to show that when the accusation was preferred, the police, including the accuser, had knowledge that the testimony going to show a sale to a person other than Harper, would identify Felix Foster as that person. If this was in fact the state of the accuser’s information or knowledge, the name of Foster should have been alleged both in the accusation and the .affidavit on which it was founded. That affidavit did not ■have to be, nor was it, positive, but only u to the best of deponent’s knowledge and belief.” If he knew or believed that Foster was one of the persons to whom a sale was •made, then the descriptive terms, “ and other persons to .deponent unknown,” do not apply to Foster, and consequently the sale to him is not embraced in the accusation, ■ and no conviction could be had for that sale. .Whatever may be the rule as to proving such an averment when .made by a grand jury in a bill of indictment, (see 4 Ga. 141, 142,) the averment in a mere accusation founded on the affidavit of an individual, is examinable just, as is any other fact involved in the case. To put a citizen on trial for crime upon alleged facts vouched only by the oath of a private person “ to the best of his knowledge and belief,” .is quite loose enough, without allowing the latter to conceal his real knowledge and belief as to a part of the facts, .by describing something as unknown which he knows as .well as he does the other ingredients of the imputed offence.

Under the charge in an accusation (not an indictment) .which alleges a sale of liquors to a person unknown to the .accuser, there can be no conviction for a sale made to a person who was known to him when the accusation was , preferred.

3. For children to be competent as witnesses, it is not requisite that they should profess to know what becomes of any one who swears to a falsehood, or the effects of an oath. If they know their own ignorance touching these great mysteries and candidly avow it, there is the more reason to think they have some clear knowledge on other subjects and will be candid in communicating it. It is enough for mere competency if they know the nature of an oath. Code, §3856. And whether they have such knowledge is to be determined by the court, and not by themsélves. Code, §3859; Peterson vs. The State, 47 Ga. 524 ; Johnson vs. The State, 61 Id. 35. Compare Johnson vs. The State, 76 Ga. 76. In the present case, the witness was ten years of age, and his evidence in the record, including his frank admission of ignorance, is intelligent, lucid, consistent and to the point. Indeed, it is quite apparent that the boy’s intelligence, and not his want of if, is what rendered his testimony distasteful to the accused.

Comparing the motion for a new trial with what has been said under the first and second heads of this opinion, it results that the court erred in not granting the motion ; there being no indication in the record, nor was it contended in the argument, that the testimony touching a sale to Foster was by the court restricted in its effect to show-ing, inferentially, the consent of Moore to a sale to Harper made in Moore’s absence by his wife. Under the special facts of this case, if such a restriction was put upon the evidence, the same should affirmatively appear.

Judgment reversed.