Nalley v. State , 71 Ga. App. 742 ( 1944 )

1. Section 58-209 of the Code provides: "It shall be unlawful for any corporation, firm, or individual to knowingly permit or allow any one to have or possess or locate on his premises any apparatus for the distilling or manufacturing of the liquors and beverages specified in section 58-201. When any such apparatus is found or discovered upon said premises the same shall be prima facie evidence that the person in actual possession had knowledge of the existence of the same, and upon conviction therefor, shall be punished as for a misdemeanor, the burden of proof in all cases being upon the person in actual possession to show the want of knowledge of the existence of such apparatus on his premises." The defendant was charged with the violation of this Code section. The judge charged the jury as follows: "Now, gentlemen, I charge you that our law declares that it shall be unlawful for any corporation, firm, or individual to knowingly permit or allow anyone to have or possess or locate on his premises any apparatus for the distilling or manufacturing of the liquors and beverages specified in section 58-201 of this Code; and those enumerated beverages which the law prohibits such apparatus for are any spirituous, vinous, malted, fermented, or intoxicating liquors. When such apparatus is found or discovered upon such premises, the same shall be prima facie evidence that the person in actual possession has knowledge of the existence of the same, and upon conviction therefor shall be punished as for a misdemeanor, the burden of proof in all cases being upon the person in actual possession to show the want of knowledge of the existence of such apparatus on his premises." The defendant excepts to this charge on the ground, "that it put the burden on the defendant to show that he had no knowledge of the distilling apparatus on other premises than his own." Held, this charge is not erroneous for the reason assigned.

2. The evidence supported the verdict, and having received the approval of the trial judge, and nothing having been shown in the motion (the only special ground of which is dealt with above) to justify a new trial, the

Judgment is affirmed. Broyles, C. J., and Gardner, J.,concur.

DECIDED NOVEMBER 16, 1944. STATEMENT OF FACTS BY MacINTYRE, J. The evidence most favorable to upholding the verdict, for every presumption and every inference is in its favor, is as follows: Officer Lambert, a witness for the State, testified: "I know Lawton Nalley [the defendant]. I saw him on the 10th day of December, 1943, the day of the alleged crime. I saw him at his home. He came up with a load of wood after we had been there for some several minutes — I don't remember just how long. I found a still that day. I found it in front of the house there on the place that he lives on. In front of Lawton Nalley's place. He said he was in possession of that place." The witness further testified that he went to the home of the defendant and from the defendant's house followed a wagon track to within about 75 yards of where the still was found and that tracks led from the wagon to the still, and that he was at the house of the defendant when he drove up on the wagon, and that they tracked the same wagon to within about 75 yards of where the still was found, and that there were no other wagon tracks and no other tracks at the place of the still except tracks from the wagon to the still and from the still back to the wagon, and that they never did, for one time, lose this track; that it had rained the night before and that the tracks were made by the wagon in which the defendant was riding; that this wagon was the only vehicle of any nature at or near the still; that there was a piece of timber in the workhouse of the defendant which matched identically in grain, texture, etc. with the lumber used in the making of the still. This lumber was introduced in evidence and exhibited before the jury.

Mr. Kinney, who lived on the land adjoining the property of the defendant, testified: "I live between here and Villa Rica on the land adjoining Mr. Nalley. . . Mr. Nalley had control of the premises that that still was found on is my understanding. Mr. Nalley has control of those premises. . . I have seen him at work over there and he lives over there."

The defendant made the following statement: "Gentlemen, at the time this still was found on my side, I was not in possession of nothing at all only the work land, the cultivated land, 102 acres. I was working at the bomber plant, I set in on the 2d of December, and as far as the still is concerned, I know nothing at all about it, and I have never made a drop of liquor in my life. As far as knowing anything about the still, I don't know anything about the still, and most everybody in the settlement works in my shop. That's all I have to say."