Ashley v. State

Gardner, J.

The defendant was convicted in the Criminal Court of Fulton County on an accusation charging him with possessing five pints of non-tax-paid whisky. He applied for and was granted the writ of certiorari. On the hearing the certiorari was dismissed. It is on that judgment that error is assigned here.

Decided June 6, 1950. C. G. Battle, for plaintiff in error. Paul Webb, Solicitor-General, John I. Kelley, Solicitor, Frank H. French, Guerry R. Thornton, William Hall, contra.

The trial judge answered the writ of certiorari. It was not traversed. The allegations of the petition for certiorari are, in practically every essential instance, denied in the answer of the trial judge. The petition alleges that the venue was not proven. The answer states that it was. The petition states that the defendant was not allowed to make a statement to the judge, who tried the case by consent of counsel, without a jury. The trial judge states in his answer that the defendant did make a statement and that the defendant denied any knowledge of the whisky.

According to the answer of the trial judge, the evidence was substantially as follows: that the officers visited the home of the defendant several times previous to the occasion in question, but did not find any whisky; that on the occasion in question the two officers visited the home of the defendant while he was away; that they went under the house and in a portion of the chimney where brick had been removed, the officers found the five pints of whisky with no revenue stamps on the containers. On entering the house the officers found the defendant’s wife and mother in bed sick. The house was located in Eulton County. One of the officers saw the defendant thereafter and questioned him concerning the whisky. He told the officer he knew nothing about it. Several days thereafter, the other officer arrested the defendant and inquired of him if the five pints of whisky found by the officer was all the defendant had, whereupon the defendant replied to the officer: “White folks, that is all the whisky I had.” The State alsp introduced, without objection, a previous conviction of the defendant, for possessing non-tax-paid whisky.

An untraversed answer of the trial judge in response to a certiorari prevails over the allegations of a petition for certiorari. The evidence sustains the verdict on every material element of the crime for which he was charged and convicted.

Judgment affirmed,.

MacIntyre, P.J., and Townsend, J'., concur.