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Lawskills.com Georgia Caselaw
PAYNE v. THE STATE.
35002.
Violating liquor law. Before Judge Frankum. Stephens Superior Court. November 27, 1953.
GARDNER, P. J.
1. The evidence amply supports the verdict.
2. The denial of a motion for mistrial is largely within the discretion of the trial court and unless this discretion is manifestly abused the appellate courts will not reverse the trial court in denying such motion.
The State introduced only one witness. The defendant introduced no evidence, but relied on his statement insofar as the statutory grounds are concerned. The State's witness, the sheriff, testified substantially: On July 10, 1953, he, together with Roy Gordon, E. L. Jones, and Ben Ward, other law-enforcement officers, went to the home of the defendant about 3:30 or 4 in the afternoon, and he and one of the officers went to the basement door near a glass window. They could not get in the door because it was fastened. As the sheriff looked through the window, he saw the defendant take into his hands two half-gallon jars of what is generally known as "moonshine" liquor. The sheriff further testified that the defendant turned on the spigot to the sink and began pouring alcoholic liquors out of the jars into the sink; that shortly thereafter the defendant unfastened the back door; that the sheriff went into the house and seized the two jars from which the defendant had poured the alcoholic liquors; that there was a small amount of the alcoholic liquors still in the jar; that, when the defendant began pouring the contents of the jars into the sink, they were each about half full. The sheriff testified from his experience and from the odor of the amount remaining in the jars that he positively knew the liquid was alcoholic liquors. The sheriff indicated by objects as to where he was standing, where the window and the sink were located. He also testified that the jars had not gotten out of his sight from the time he saw the defendant pouring the contents into the sink until the time he seized the jars. The sheriff further testified that one of the other officers went in the back door with the sheriff and the other two officers accompanying the sheriff were trying to get in at the front of the house. All of the officers were locked out. The sheriff did not arrest the defendant that day. The sheriff further testified that the defendant wanted to know if the sheriff was "dam little enough" to make a case against him for two empty jars, whereupon the sheriff said: "I told you a number of times if you didn't get out of the liquor business I was going to catch you, and I did."
The sheriff also testified that the defendant said the doors would be locked next time (it being the screen door which was locked at the time under discussion here). The sheriff said: "I would have caught you with the liquor in the jars, if your daughter had not shut the door in my face." He said, "I have got them trained that way."
On cross-examination the sheriff testified that a man by the name of Claud Ellard was in the house when the officers entered but did not stay there very long. The sheriff did not have Ellard subpoenaed. The sheriff testified that the window was down, but that the witness was "right up there looking at him [meaning the defendant]." One of the officers started to take the jars, whereupon the defendant said, "I paid a . . . fine for two empty jars one time," and stated that he was not going to pay for two more empty jars. The sheriff informed the defendant that he did not need the jars.
The sheriff further testified that, when he arrived at the home of the defendant, he did not see the defendant's daughter in the kitchen. He only saw the defendant who was pouring the alcoholic liquors from the jars. The sheriff did not see the defendant in the yard. The children of the defendant were in the yard and ran up to the door. The sheriff had a search warrant. Mr. Gordon and Mr. Jones are State Federal Agents and Mr. Ward is a deputy sheriff.
The defendant made a statement as follows: "I will tell you the way it all started. The sheriff and Chief Smith and Mr. Gaines and Joe Lee come down to my house on the 20th of February, I believe, somewhere along there. Well, there was three fruit jars setting on the water heater. They had had liquor in them. I [They?] had not been in my possession. A boy come to my house with these three jars, Willie Smith, from South Carolina. He wanted to sell them to me and I bought them. The sheriff came the next day and the jars were still setting there. They searched and smelled those jars. They didn't make a case. I heard later there was some talk about making a case. The sheriff never mentioned it to me. He has never mentioned to me to quit fooling with liquor. Last Saturday, me and my wife--I have two houses on a 100 foot lot, I had a swing blade cutting grass, and my wife was sweeping the yard. The boy come from the barn and said, 'Daddy, here is the law.' I walked around to the front. The door was not locked and there was not a soul at the front door. The sheriff, Roy Gordon, Ben Ward and this other little State man, I believe Mr. Jones, they was all at the back door. The sheriff said, 'Look out, Woodrow, I see you pouring out that liquor.' There was no liquor in that house, before I even got in the kitchen. Me and my brother-in-law was going fishing next day, the one that lives next door. I unlocked the door and they all scrouged in. Those jars, they had no smell of liquor, there was none in them, none in my house or in my possession. I walked out and left them in the kitchen. They didn't go in any other room. They never searched. These fellows followed me out, all but the sheriff. These other fellows went the way they came. I was in the yard and I looked up and the sheriff was coming out of the house with those two fruit jars without any lids. He set them down on the side of the porch. He goes back in and Mr. Ward picks them up. I didn't cuss nobody. I asked him not to take the jars. The sheriff heard me and him talking and he comes out and says, 'I am going to take them,' and I said, 'You leave the jars.' 'Well,' he says, 'I tell you what I am going to have to do. I will leave the fruit jars, but I will have to make a case against you for pouring out the liquor.' I said I didn't, that I didn't have any to pour out. I said, 'Sheriff, who has the warrant to search my house?' He commenced shaking and got it out of his right-hand pocket. Mr. Gordon talked to me. He said, 'Woodrow, I couldn't see you pouring out any liquor.' That is why the sheriff didn't have him here today. Gentlemen, that is the grounds they are asking you to convict me on. That is all I have to say."
The defendant made an additional statement as follows: "The only thing I know--he brought the airport business up--the only thing I know and the only thing that was said he stopped me on the airport road one night. My wife was with me and he followed me from the steel plant at Deercourt. He commenced blinking his lights and I stopped. He never said a word. He wanted to search in the back, in the trunk. I got the switch key out and handed them to him and told him he could unlock it as good as I could. That is the only warning I ever had."
1. We have set out the evidence somewhat in detail, first to show that the evidence was amply sufficient to support the verdict, and second, to get the setting regarding the special ground on which learned counsel for the defendant so enthusiastically insist.
It must be kept in mind that a voluntary statement made by a witness stands on a different basis with reference to a mistrial from that covered by the provisions of Code 81-1009, which section has reference to a contention of attorneys who are officers of the court. It is sometimes in the procedure of a trial difficult to control what a witness might voluntarily say in response to a question. The court ruled out the answers of the sheriff with reference to reports, and under the facts of this case--the evidence and the defendant's statement--we cannot conceive of any prejudicial error sufficient to reverse this case. In Manchester v. State, 171 Ga. 121 (7) (155 S. E. 11), the Supreme Court said: "The grant of a mistrial is a matter largely within the discretion of the trial judge and this discretion will not be interfered with unless manifestly abused." That principle of law has been applied many times by both of the appellate courts of this State. The law and the decisions do not require a reversal of this case. See Barney v. State, 22 Ga. App. 120 (1) (95 S. E. 533); Southeastern Greyhound Lines v. Hancock, 71 Ga. App. 471 (4) (31 S. E. 2d 59); Flournoy v. State, 82 Ga. App. 518 (61 S. E. 2d 556); Osteen v. State, 83 Ga. App. 378 (2) (63 S. E. 2d 692); Hodges v. State, 85 Ga. App. 617 (70 S. E. 2d 48); Cole v. State, 86 Ga. App. 770 (72 S. E. 2d 537); Walker v. State, 86 Ga. App. 875 (72 S. E. 2d 774); Ralls v. State, 87 Ga. App. 655 (75 S. E. 2d 26); Bashinski v. State, 123 Ga. 508 (51 S. E. 499); Bacon v. State, 209 Ga. 261 (71 S. E. 2d 615). Counsel for the defendant cites several of these cases. It must be kept in mind that, in the type of contention now before us, each case must rest upon its own facts. The denial of a motion for a mistrial being in the discretion of the trial court, such ruling will not be reversed unless the trial judge manifestly abuses his discretion to the extent that the party aggrieved was prevented from receiving a fair trial. Such is not the situation here, when we take into consideration the evidence and the defendant's statement.
Winston Owen, Solicitor-General, contra.
Irwin R. Kimzey, Herbert B. Kimzey, for plaintiff in error.
DECIDED JANUARY 29, 1954.
Saturday May 23 03:46 EDT


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