Hines v. State

Judgment affirmed.

Bob Hines was charged with selling and furnishing malt and intoxicating liquor and intoxicating bitters in Carroll . county, “ in 714th district, Georgia Militia.” He was found guilty, and moved for a new trial on the general grounds, and for newly discovered evidence. The motion was overruled. At the trial one Mitchell testified that about the first part of 1892 or the latter part of 1891, he went to the defendant’s barber-shop to be shaved; asked defendant if he knew where witness could get any whisky; defendant said there was some in Stewart’s wagon-yard, that a man from Alabama had some blockade there. Witness begged defendant to go and get him some whisky; defendant consented, and witness gave him twenty or twenty-five cents. Defendant left, and in a short time returned with half a pint of whisky. He charged nothing for going. Witness did not pay or offer to pay him anything for going. This occurred “in 714th disk, Carrol!co.” Ben Crider testified that on Sunday morning about the latter part of September, ■ 1892, he and others were in his room “ in Carrollton and in 714th disk, G. M., said county.” He saw defendant on the street, and told him to go and bring some liquor up there. ' After awhile defendant came in, set a bottle on the mantel and went out. Witness did not pay defendant anything for the whisky or for going after it, nor did he know of any one else paying him. He had no whisky in defendant’s barbei’-shop on the night before; did not know whether any of the others who were in his room, had or not. Recalled, Crider testified it was not true that a few nights or at any time before the furnishing of this whisky by defendant to him and the others, he had left any whisky in defendant’s shop; he did not know where defendant got the whisky from. One Stewart testified that he was a member of the grand jury at the October term when this indictment was found; that in the case of Bill Benson the defendant swore to the grand jury that he had never sold or furnished Mitchell or Crider any whisky; and that he had never carried or furnished them with whisky. The defendant stated that the whisky he got for Mitchell was some he bought for him in Stewmrt’s wagon-yard from a man who had it in a jug covered up in a wagon, and who said he lived in Alabama. This man was soon afterwards arrested for selling whisky. Two witnesses gave testimony tending strongly to corroborate this part of defendant’s statement. As to the -whisky he carried to Crider, he stated that Crider had been in his shop a night or two before the time he was told by Crider to go and get him that liquor, and had left some there in a bottle, and that when Crider told him to get him some liquor he went to his shop, got the liquor Crider had left there, carried it to his room, set it on the mantel and left immediately. Several other boys were in the room.

The newly discovered testimony was embraced in an aflidavit of Crider, that “ on Sunday morning, 1892,” from his room he saw the defendant on the street, called him and told him to go to Bill Benson’s and get him a pint of liquor; and that he had talked to defendant’s counsel prior to that time, but never told them of that fact. As to this testimony, the defendant made affidavit that when Crider was on the stand defendant thought he was testifying about a different transaction from the one he testified to, which was when Crider or some one in his room called defendant to go to his shop and get some whisky left there the night before; that he was not thinking of the time Crider told him to go to Benson’s and get whisky, as he thought the arrangement about the whisky obtained from Benson for Crider had lieeii made beforehand; that he had entirely forgotten this, and' never thought of it until after his trial, when Crider reminded him of it. There was an affidavit by defend-an't’s'counsel', that they had been diligent in the preparation of his case alid did not know of the fact embraced in Crider’s affidavit until after the trial; 'and an affidavit by W. I. Cobb, that Crider’s character was good and he would believe him on oath. • •

W. D. Hamrick and W. F. Brown, by brief, for plaintiff in error. T. A. Atkinson, solicitor-general, and Edgar "Watkins, by Atkinson & Hall, contra.