Hughes v. State

The overruling of the certiorari was not error.

DECIDED OCTOBER 22, 1941. Harvey Hughes was convicted in the criminal court of Fulton County of the offense of possessing non-taxpaid whisky, and his certiorari was overruled by a judge of the superior court of Fulton County.

The contention of counsel for the accused is that the conviction was not authorized by the evidence. The trial judge, in his untraversed and unexpected to answer to the petition for certiorari, makes the following statement: "J. W. Gilbert, a witness sworn in behalf of the State, testified that after he and his partner, Mr. H. Barton, arrested this defendant, the defendant, who is the husband of Sarah Hughes and who lived with her at No. 1028 Dimmock Street, Fulton Co., Ga., where the whisky was found, admitted that 1 quart and 5 pints of the whisky, which was found under the house, belonged to him; that there were no tax stamps prescribed by the State Revenue Commissioner affixed to the containers in which the whisky was found; that the statement made by Harvey Hughes that the whisky belonged to him was freely and voluntarily made; that there was no threat to lock up every one present unless some one claimed the whisky." It is well-settled law that the untraversed and unexcepted-to answer of the trial judge must be accepted as conclusive of the facts stated in the answer. Martin v. State, 43 Ga. App. 334 (158 S.E. 803).

The evidence authorized the finding of the trial judge, sitting without the intervention of a jury; and the overruling of the certiorari was not error.

Judgment affirmed. MacIntyre and Gardner, JJ., concur.