Doster v. State

Lumpkin, Justice. 1. Hnder the ruling in Mathis v. The State, decided this term, there was no error in overruling the demurrer to the indictment. It was held .in that case that the authority to grant licenses to sell spirituous liquors in Putnam county was vested exclusively in the board of commissioners of roads and revenues, and that it was a [44] misdemeanor to sell such liquors in any quantity in that county without a license from that board. Ante, 38. 2. In one view of the evidence introduced by the State, the jury were warranted in finding that the accused, whose place of business was in-Morgan county, had in that county bargained to one Tom Navis a quantity of whisky at a price agreed upon and paid; that the whisky so contracted for was not separated from the general stock of the accused, or delivered to Navis, but it was understood between the parties that the same was to be sent by express to Navis in Eatonton, which place was in Putnam county; that the delivery was not, however, made in the manner contemplated by the parties, but that afterwards one Bob O’Neil, air employee of the accused in his bar-room, took the whisky to Putnam county, and there delivered it to Navis in person. Had the whisky been delivered to the express company, which was a common carrier, it would have been a constructive delivery to the purchaser, Navis, and therefore the sale would have been complete in Morgan county; but as the delivery was not thus made, but in the manner above stated, the sale was never consummated in Morgan county, and only became complete when Navis received the whisky in Eatonton. Therefore, according to the principle laid down in Bagby v. The State, 82 Ga. 786, the sale, in contemplation of law, took place in Putnam county. This, in substance, though not m the clearest terms, the trial court charged. In the charge as given we see no error requiring a new trial. 3. The third head-note presents nothing requiring comment. 4. The fourth head-note succinctly, but with sufficient clearness, states the duty of the trial judge in reference to charging concerning the prisoner’s statement. In the performance of this duty, the judge should never fail to instruct the jury that they may believe the [45] statement in preference to the sworn testimony in the case. The omission to do so, however, will not in every case render necessary the grant of a new trial. The present ease affords an instance of this kind. Two witnesses swore positively they had purchased whisky from the accused in Putnam county. In his statement, he denied the truth of their testimony. A third witness, his own employee above mentioned, testified concerning the sale to Tom Davis, discussed in a previous division of this opinion. In his statement, the accused made no reference •whatever to the testimony of this latter witness, which was of itself sufficient to warrant a conviction. Therefore, giving the prisoner the full benefit of his statement, by allowing it to outweigh and overcome the testimony of both of the two witnesses first above referred to, there would still be left uncontroverted evidence sufficient to sustain a verdict of guilty. On the supposition that the jury utterly rejected the testimony of the first two witnesses (and this is certainly conceding to the accused all he is entitled to), enough was left to support a conviction, and we therefore do not feel constrained to set it aside. 5. It appears from the foregoing that the verdict of guilty was warranted by the evidence, and no error of law having been committed by the trial judge which would authorize the grant of a new trial, his judgment overruling the certiorari must stand. Judgment affirmed.