The court did not err in overruling the motion for a new trial for any of the reasons assigned.
DECIDED OCTOBER 12, 1945. *Page 50 Upshaw Cowart, the plaintiff in error, hereinafter called the defendant, was convicted in the City Court of Reidsville for possessing unstamped whisky. His motion for a new trial, containing the general grounds and one special ground, was overruled, and to that judgment the defendant excepted.
Dewey Rogers, chief of police of the City of Collins and deputy sheriff of Tattnall County, testified for the State, that on April 18, 1945, while driving along a street he inquired of the defendant, who was walking there, if he had seen a certain person, whereupon the defendant replied that he had not, and walked hurriedly away in a manner that aroused suspicion in the mind of the witness. The witness then followed the defendant to a filling station, jumped out of his car, and went in the front of the filling station and the defendant ran in the back. The witness walked right on through the filling station to the rest room and discovered the defendant, Upshaw, and others in the rest room. "I saw Upshaw take a pint bottle of moonshine whisky out of his pocket and set it in the sink. The bottle in which this whisky was did not have affixed thereon any revenue stamp of the State of Georgia." The witness stated that there were other persons in the rest room. The bottle of whisky was exhibited.
W. C. Collins testified for the State, that he was under the arrest of the chief of police (whose testimony appears immediately preceding); and that, while the two were on the way uptown in the car of the chief of police, the witness saw the defendant go in the filling station and the chief of police follow the defendant therein. "I could not see either of them after they entered the filling station. I could see Mr. Cowart before he went in, but I did not see any liquor on him or any sign that he had any liquor on him."
The owner of the filling station testified for the defendant, that he did not know anything about the liquor in question, and that he did not see anyone with any whisky except the chief of police.
Hilliard NeeSmith testified for the defendant, that he and others were in the rest room at the filling station when the chief of police came in and asked about a drink of whisky. "We told him we did not have any. He picked up a bottle and asked whose whisky *Page 51 it was. That was the first time I had seen the bottle. I do not know whether it was whisky or not. I did not see Upshaw Cowart with any whisky."
The defendant in his statement denied possessing the whisky in question. There being sufficient evidence to sustain the verdict of the jury, this court is without authority to disturb the verdict.
As to the contention that the judge struck out certain printed matter from the printed form of the verdict, and left the words, "We, the jury, find the within named defendant guilty," we do not think that there is merit in such contention, for the reasons: (1) there was no objection to the form of the verdict at the time of its rendition, as required; and (2) the judge properly charged the jury as to the form of the verdict, as shown in the amended motion for new trial. As to (1), in Erans v.Rogers, 1 Ga. 463, it was decided that, where no objection is made at the time a verdict is rendered, the fact that there has been an irregularity in the verdict is no ground for setting it aside. Regarding this point, the trial judge, in his judgment refusing a new trial, said: "I do not believe that the facts recited in the amendment to the motion relative to the printed word `guilty' being left in the skeleton form of verdict had any influence one way or the other upon the jury in considering . . their verdict." The jury did not leave the word "guilty" printed in the form as the only affirmative evidence of their verdict,but wrote in the word guilty in pencil, thus showing that it was their intention to return the verdict of guilty. They ignored the word as printed in the form. In view of this act on the part of the jury, coupled with the fact that the judge did not consider that the defendant had been harmed, and that no objection was made at the proper time, and in view of the fact that the verdict returned was a correct one according to the views of the jurors and of the trial judge, this ground is without merit.
The trial judge did not err in denying the motion for a new trial for any of the reasons assigned.
Judgment affirmed. Broyles, C. J., and MacIntyre, J.,concur. *Page 52