1. A recital in a bill of exceptions that the trial court overruled a demurrer, that exception was taken to such ruling, and such ruling is assigned as error, is sufficient, when the demurrers specified as a part of the record and discloses the objections made against the accusation. McGregor v. Third National Bank of Atlanta, 124 Ga. 557 (3) (53 S. E. 93); Toomey v. Read & Gresham, 133 Ga. 855 (1) (67 S. E. 100). The suggestion of counsel for the State that the assignment of error be not considered for failing to state the grounds of the demurer is without merit.
2. Where non-tax-paid whisky is possessed in a "dry" county of this State, the possessor is chargeable with the commission of two offenses. One offense is that of possessing non-tax-paid whisky in violation of Code (Ann. Supp.) 58-1056, a revenue measure; and the other offense is the possession of whisky in a dry county in violation of Code 58-201. Pierce v. State, 200 Ga. 384
(37 S. E. 2d 201); Pierce v. State, 73 Ga. App. 627
(37 S. E. 2d 431); Roberson v. State, 73 Ga. App. 682
(37 S. E. 2d 712); Roberson v. State, 76 Ga. App. 25
(44 S. E. 2d 924); Fitzgerald v. State, 82 Ga. App. 521
(61 S. E. 2d 666). The trial court, consequently, did not err in overruling the demurrer to the accusation upon the ground that the accusation charged the defendant twice with the same offense. The request of counsel for the defendant that the decision of this court in the Pierce case, supra, be overruled is denied.
3. A ruling on demurrer to an accusation cannot be made a ground of a motion for a new trial. Walker v. McMillen, 83 Ga. App. 257
(63 S. E. 2d 250). Special ground 1 of the motion for a new trial is, consequently. not considered.
4. Where, upon the trial of one charged with possessing non-tax-paid whisky in a dry county of this State, the only direct evidence of the defendant's possession of the whisky comes from a witness who, the jury was authorized to find, had been impeached, and the trial court properly instructed the jury on the law of impeachment, it was error requiring the grant of a new trial for the trial court to fail to instruct the jury on the law of circumstantial evidence. It appears from the evidence in this case that at the time of his arrest, the defendant was riding in the front seat of an automobile, sitting between the owner of the automobile and another person. A quantity, about seventy-five gallons, of non-tax-paid whisky was found in the rear compartment of the automobile and the trunk of the automobile. Presumptively the whisky found in the automobile belonged to the owner of the automobile who was driving the car. Arnold v. State, 85 Ga. App. 366
(69 S. E. 2d 615), and citations; Miller v. State, 73 Ga. App. 810
(38 S. E. 2d 180). The only direct evidence against the defendant was the testimony of the owner of the automobile that the whisky belonged to the defendant. Under the evidence and the court's charge to the jury that witness could have been impeached by the jury. In the event the jury did find that that witness had been impeached the jury was left to decide the defendant's guilt or innocence entirely from circumstantial evidence without any instruction upon the law of circumstantial evidence. This, we think, under the circumstances of this case was error.
5. The remaining assignment of error, complaining of the trial court's instruction in answer to a query from the jury, is not considered, as the alleged error is not likely to recur upon another trial.
Chester Horne was tried and convicted under an accusation in two counts charging him with the possession of whisky. In Count 1 of the accusation, it is alleged that on March 3, 1954, in Thomas County, Georgia, the defendant "did unlawfully have in his possession, custody or control, certain distilled spirits, alcohol, whisky and liquor, the container or containers of which did not bear the tax stamps prescribed by the State Revenue Commissioner of Georgia, contrary to the laws of said State, the peace, good order and dignity thereof. The above accusation is hereby made a special bill and applies to the aforesaid day and date and to no other day." In Count 2, it is alleged that on March 3, 1954, in Thomas County, Georgia, the defendant "did unlawfully have in his possession, custody and control, certain spirituous, alcoholic, and intoxicating liquors, to wit, whisky, said county of Thomas being a county in which the terms of the revenue act of the State of Georgia to legalize and control alcoholic beverages and liquors do not apply, and wherein liquors are not legalized under the terms of said act, contrary to the laws of said State, the peace, good order and dignity thereof. The above accusation is made a special bill and applies to the aforesaid day and date and to no other day."
The defendant demurred to the accusation on the following grounds: "(a) The same is duplicitous and each count charges the identical offense, thereby putting this defendant in double jeopardy. (b) That count one of the accusation intends to charge this defendant under the provisions of Ga. Laws Ex. Session 1937-38, page 117; Code Ann. Supp., 58-1056, and such section is not operative in Thomas County, Georgia, as such county has not voted to legalize and control alcoholic beverages, as set out in the second count of the said accusation. (c) That the result of Code Ann. Supp., 58-1056 not being operative in said county is that the words in the said first count of the accusation, to wit: 'the containers of which did not bear the tax stamps prescribed by the State Revenue Commissioner of Georgia,' are surplusage and a valid charge under Code 58-201 results. (d) The second count of the indictment is brought under the provisions of Code 58-201, and (e) This defendant is placed in double jeopardy and charged twice with the identical offense, in two separate counts in the same accusation and must proceed to trial simultaneously therein, and be denied his right to plead former jeopardy, either autrefois convict or autrefois acquit."
The trial court overruled the demurrers and the defendant assigns error thereon in his bill of exceptions.
The defendant's motion for a new trial, based on the usual general grounds and three special grounds, was denied, and he assigns error also upon that judgment.