special concurrence in dissent.
I agree that this court is bound by the cases cited in the dissent and the holdings therein as to the any evidence rule and credibility of witnesses being for the jury or judge trying cases without a jury. For that reason, I concur in the dissent.
Addendum.
Evans, Judge.I wish to reply to the dissent in this case. The majority opinion has not held that the police lied in their testimony as to the purposes of the roadblock. If the dissenters choose to say the decision in this case so establishes, then the responsibility for saying the policemen lied must rest upon the dissenters—not upon the majority. When a judge grants a new trial on the general grounds, as it is his duty to do when the verdict is manifestly and palpably contrary to the evidence (see McMillan v. McCoy, 13 Ga. 320; Code § 70-202) that is not a judgment that the witnesses for the prevailing party lied. Surely the dissenters must know that!
Was the roadblock in this case a mere subterfuge for checking on illegal drugs? Only the policemen could testify as to their real purpose, reason, motive, intention, scienter in setting same up. The law permitted them to testify as to their motive or reason. But the investigation never stops there! All of the evidence in the case, direct and circumstantial, must be considered in order to arrive at the real motive. In Royce & Co. v. Gazan, 76 Ga. 79 (5), "A party may testify as to his intention. It is evidence to be considered, but the facts—all the facts—are to be *243considered, to arrive at the truth respecting his real motive.”See also Childers v. Ackerman Constr. Co., 211 Ga. 350, 354 (86 SE2d 227), and citations. "It is well settled that circumstantial evidence may sometimes outweigh positive testimony.” Minter v. Kent, 62 Ga. App. 265, 272 (8 SE2d 109).
The policemen testified they set up the roadblock to check on drivers’ licenses, etc., and they actually did check on a few—a very few—drivers’ licenses. But their real motive in setting up the roadblock is all too clearly revealed by the host of officers accompanying them to the scene of the roadblock including a magistrate, assistant prosecuting attorney, and trotting by their side was the marijuana dog, who could smell neither an expired drivers’ license, nor expired automobile tag or sticker, and whose expertise was limited to smelling out marijuana. The message comes through loud and clear— subterfuge!
Addendum to Dissent.
Hall, Presiding Judge.The Attorney General of Georgia has filed an amicus curiae brief in this case on motion for rehearing. He states that "The decision rendered by this Court in the case sub judice adversely affects law enforcement agencies in and out of the State of Georgia, including the Uniform Division of the Georgia Department of Public Safety, known as the Georgia State Patrol. By virtue of his office the movant has sufficient interest to justify appearance amicus curiae in support of the law enforcement agencies of the State of Georgia.”
We also note that " 'there is nothing ipso facto unconstitutional in the brief detention of citizens under circumstances not justifying an arrest, for a purpose of limited inquiry in the course of routine police investigations.’ ” United States v. Oswald, 441 F2d 44, 46 (9th Cir.). See also Connor v. State, 130 Ga. App. 74, 75 (202 SE2d 200).
It is ironic that at a time when the Supreme Court of the United States is moving in the direction of expanding the right of law enforcement officers to search persons incident to arrest for traffic offenses, this court *244seeks to impose limitations upon the power of those officers to detect traffic offenses. See United States v. Robinson, 414 U. S. 218 (94 SC 467, 38 LE2d 427); Gustafson v. Florida, 414 U. S. 260 (94 SC 488, 38 LE2d 456).