Buchanan v. State

1. On the trial of a defendant charged under Code (Ann. Supp.), § 58-726 with the offense of possessing, for the purpose of sale, any of the malt beverages specified and legalized by Chapter 58-7 of the Code and Supplement, without first having obtained a license to deal in such beverages, the term "beer" used in the testimony of the State, designates any and all that class of malt beverages within the purview of Chapter 58-7 of the Code and Supplement. Insofar as the description of the beverage is concerned, this makes a prima facie case, and if the defendant contends that the malt beverage he possessed was outside the purview of this Chapter, the burden of proof shifts to him to establish this contention. See Williams v. State, 73 Ga. App. 421 (36 S.E.2d 839), and Bilbo v. State, 73 Ga. App. 680 (37 S.E.2d 812).

2. The evidence, although circumstantial, is not only consistent with the hypothesis of guilt, but it excludes every other reasonable hypothesis save that of the guilt of the accused. See Code, § 38-109; Dunn v. State, 18 Ga. App. 95 (1) (89 S.E. 170).

DECIDED JULY 16, 1948. The plaintiff in error, A. D. Buchanan, hereinafter referred to as the defendant, was charged by accusation in the City Court of Carrollton with a misdemeanor for that, according to the charge contained in the accusation, the said defendant did, on July 12, 1947, offer for sale, and possess for the purpose of sale, malt beverages commonly known as beer, without having first obtained a license to deal in such beverages under the provisions of Chapter 58-7 of the Code.

The evidence consisted only of the testimony of a witness for the State, H. R. Lambert, a State revenue officer. He testified: that he knew the defendant and went to his home on July 12, 1947; that he found 72 cases of beer on the back porch of the defendant's home; that over a period of 2 years prior to said date he had gone to the home of the defendant on other occasions, and that two or three times a quantity of beer was found, but not as much as was found on July 12th; that on four or five occasions the defendant had iced beer in tubs on the back porch; that on two occasions he watched the defendant's house in the back; that several cars parked in the front and the occupants of these cars would go to the back of the house and come back to their cars with something in a paper sack; that on some occasions the defendant would load several cases of beer in his car and drive off and that on other occasions several cases of beer would be loaded in his brother's automobile from the back porch of the defendant's house and taken away; and that on every occasion when he went to the home of the defendant there was beer on the back porch in ice tubs except the last time when the 72 cases were found there.

The jury convicted the defendant and he was sentenced accordingly by the trial court. He filed a motion for a new trial on the general grounds only which was overruled and this judgment is assigned as error. The accusation in this case is based on the 1947 Cumulative Pocket Part of the Code Supplement, § 58-726, as follows: "No person, firm or corporation shall sell, offer for sale, or possess for the purpose of sale, any of the malt beverages specified and legalized by this Chapter, without first having obtained a license to deal in such beverages under the provisions of this Chapter, and any person, firm or corporation guilty of violating the provisions of this section shall be guilty of a misdemeanor and punished as provided in this Chapter." (Ga. L. 1937, pp. 148, 152.)

The State contends that the evidence is sufficient to convict the defendant of possessing beer for the purpose of sale. The defendant contends, first, that since § 58-726 of the Code Supplement confines the offense of selling, offering for sale, or possessing for the purpose of sale, without first having obtained a license, to malt beverages specified and legalized by this Chapter, and that since under Code § 58-704, malt beverages containing more than 6% of alcohol by volume are not legalized, and that since there is no evidence in the instant case to show what the alcoholic content was of the beer in question, the evidence is insufficient to authorize the verdict, and second, that since the evidence is purely circumstantial, the same is not sufficient to exclude every reasonable hypothesis save that of the guilt of the accused.

1. The accusation in the instant case charges that the defendant did "possess for the purpose of sale, malt beverages commonly known as beer, without first having obtained a license to deal in such beverages under provisions of Chapter 58-7 of the Code." Construing Code § 58-704 and § 58-726 of the 1947 Cumulative Pocket Part, Code Supplement together, the offense is for selling, offering for sale, or possessing for the purpose of sale, malt beverages commonly known as beer containing 6% of alcohol by volume or less, without having first obtained a license to deal in such beverages. No license can be issued for dealing in such beverages containing more than 6% alcohol by volume.

The word "beer" is used in the testimony of the officer in the instant case. In Williams v. State, 73 Ga. App. 421, 423, (supra), the following is said: "``Beer' is a term now of general currency in this State, and perhaps elsewhere used to designate any and all of that class of malt liquors within the purview ofthe general revenue act of 1935." (Italics ours.) See alsoBilbo v. State, 73 Ga. App. 680 (supra).

In the Williams and Bilbo cases, supra, the term "beer" was used in indictments charging the defendant with the sale thereof without having first obtained a license to deal in such beverages. It is there held that when the term "beer" is thus used it refers to the malt beverages within the purview of Chapter 58-7 of our Code and Supplement. Here the accusation charges the possession for the purpose of sale, of malt beverages, commonly known as beer, without having first obtained the license, etc.

Since the testimony of the witness referred to "beer" and since this term under the Williams and Bilbo cases, supra, is the proper one to designate any and all that class of malt liquors within the purview of Chapter 58-7 of our Code and Supplement, and since no license can be granted for the sale of malt beverages containing more than 6% of alcohol by volume, the testimony of the officer as to the beer possessed by the defendant constitutes a sufficient description of the beverage to make out the offense under § 58-726 of the Code Supplement. A prima facie case was made, and the burden shifted to the defendant to show that the beer contained more than 6% of alcohol by volume and was therefore not a beverage regulated by Chapter 58-7 of the Code and Supplement provided the defendant so contended.

2. In dealing with the question of whether or not the evidence is not only consistent with the hypothesis of guilt, but whether or not it excludes every other reasonable hypothesis save that of the guilt of the accused, upon examination of the testimony of the officer it appears that this defendant frequently kept large quantities of beer on his back porch; that he sometimes loaded several cases in his car and his brother's car to be hauled away; that he kept tubs of beer in ice on his back porch; that many people parked their cars in the front of his house and walked around to the back and carried something to their cars in paper bags, and that on this particular occasion the defendant had 72 cases of beer on his back porch. In Dunn v. State, 18 Ga. App. 95 (1) (supra), the following is held: "In the trial of one charged with the unlawful sale of intoxicating liquor, proof that the accused received from an express company, within two years next preceding the indictment, between five hundred and a thousand gallons of whisky is admissible. This fact may be considered by the jury as a corroborative circumstance, enhancing the probative value of other evidence which may tend to show the defendant's guilt."

We think the evidence is sufficient under the circumstantial evidence rule as laid down in Code § 38-109, to support the verdict of guilty. Counsel for the defendant cites Fain v.Atlanta. 8 Ga. App. 96 (68 S.E. 619), in support of his contention that the evidence is insufficient. There it was held that the mere possession of 3 gallons of corn whisky in 1/2 pint flasks kept in the owner's dwelling without any evidence of a sale or an attempted sale on the part of the owner, is insufficient to authorize the conclusion that the liquor was kept for the purpose of sale, there being nothing in the evidenceauthorizing the inference of sale. Here the beer was possessed by the defendant in his home and there was much evidence to authorize the inference of sale.

The evidence authorized the verdict and the judgment of the trial court overruling the motion for a new trial is without error.

Judgment affirmed. MacIntyre, P. J., and Gardner, J.,concur.