Greeson v. The State (Two Cases)., 97 Ga. App. 248, 102 S.E.2d 506 (1958)
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J. Ray Merritt, for plaintiff in error.
These are companion cases to the cases of Greeson v. State (Nos. 37033 and 37034), ante. The trial in those cases was held in the morning and in these in the afternoon of the same day, the charges against the defendant in both sets of cases being the same, only the date being different, the accusations in the other cases charging Greeson with possessing and selling non-tax-paid whisky on November 8, 1956, and these accusations charging a similar offense on November 18, 1956. After the defendant was convicted in these cases he made a motion for a new trial on the general grounds and on 11 special grounds and the error assigned here is the denial of that motion.
1. The court did not err in refusing to grant a continuance as complained of in special ground 1 of the motion. The fact that one or more of the jurors who sat in the case also sat in the courtroom and heard the testimony in another case against the same defendant is not ground for a new trial. Johnson v. State,
5. Special ground 7 assigns error on a portion of the charge which instructed the jury that they might convict the defendant if the evidence showed and if they believed that he, within two years prior to the filing of the accusation, possessed, controlled and sold non-tax-paid alcoholic liquors. It is contended that this is error because the defendant had just been placed on trial under an accusation charging him with a similar offense on November 8, 1956, and that this trial being on an accusation charging an offense on November 18, 1956, the charge complained of had the effect of placing the defendant in double jeopardy as to the November 8, 1956, transaction for which he had already been found guilty. The evidence in this case was simple and uncomplicated. The State's single witness, which the jury chose to believe, testified directly that he went to the defendant's house and purchased non-tax-paid whisky from the defendant on November 18, 1956. There was no testimony and no issue made in the case as to the date of the transaction and under the evidence, if the jury chose to believe the State's witness in preference to the defendant's statement, the verdict of guilty had to be based on a transaction on November 18th and not on any other date. It follows that this charge could not possibly have been harmful to the defendant, and the trial court did not err in overruling this ground of the motion.
6. In the remaining special grounds of the motion, error is assigned on the failure of the court to state to the jury the contentions of the defendant and the failure of the court to charge that the burden of proof was on the State to prove the guilt of the defendant beyond a reasonable doubt, and on the ground that the court erred in charging the jury two excerpts from the charge lifted from their context. In reply to the contentions made by these grounds of the motion, it is sufficient to say that the court's charge was, in the absence of a timely written request, sufficient and fair to the defendant. The court did charge that the burden was on the State to prove to the jury's satisfaction beyond a reasonable doubt the guilt of the defendant by the introduction of competent evidence, and that, if the jury entertained any doubt as to the defendant's guilt, they ought to acquit him. The charge on the burden of proof was in substantially the same language as that approved in McDuffie v. State,
7. The evidence authorized the verdict.
Chas. C. Pittard, Solicitor, contra.
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