Brown v. State

Nichols, Presiding Judge.

1. In an accusation charging the defendant with the possession of nontax-paid liquor an allegation stating the quantity possessed is mere surplusage since the possession of any quantity of such nontax-paid liquor is a crime. See Pierce v. State, 73 Ga. App. 627, 632 (37 SE2d 431).

2. Had the accusation charged the defendant with possession of nontax-paid liquor, to wit: a described amount in described containers at a described place in the county, then such allegations would not be surplusage but a material part of the accusation (see Johnson v. State, 79 Ga. App. 210, 214 (53 SE2d 498)), since a conviction under such an accusation would not bar a second prosecution for possessing other non-tax-paid liquors at another place in the county.

3. Where, as in the present case, under an accusation as described in headnote 1, the defendant is sworn and testifies that a part of the nontax-paid liquor introduced in evidence was his, the conviction is demanded and any alleged errors in the trial court’s instructions to the jury would not constitute reversiDle error. See Dumas v. State, 62 Ga. 58 (3), and Barbour v. State, 66 Ga. App. 498 (18 SE2d 40), and cases there cited as to the effect of admissions of a defendant made on the trial of a criminal case.

Judgment affirmed.

Hall and Deen, JJ., concur.