
    12135.
    Oswalt v. The State.
    Decided April 14, 1921.
    Indictment for manufacture of liquor, etc.; from Haralson superior court — Judge Irwin. December 20, 1920.
   Broyles, C. J.

The motion for a new trial contains only the usual general grounds; there was some slight evidence which authorized the defendant’s conviction; and, the finding of the jury having heen approved by the trial judge, this court is without authority to interfere.

Judgment affirmed.

Bloodworth, J., concurs.

Luke, J.,

dissenting. I do not think the evidence authorized the defendant’s conviction.- At best, in my opinion, only a suspicion of guilt was shown by the evidence. The case rests upon circumstantial evidence, and, to my mind, the evidence is not nearly so convincing as the evidence in Smith v. State, 16 Ga. App. 291 (85 S. E. 281), and Neville v. State, 23 Ga. App. 144 (97 S. E. 894), wherein convictions were set aside.

The indictment charged John Oswalt with violation of the prohibition law by manufacture of liquors, possession of liquors, and possession of apparatus for the manufacture of liquors. There was a general verdict of guilty. The State relied on testimony as to the finding of a still and other evidences of the manufacture of liquor in a pasture where the defendant kept his cattle, about half a mile from where he resided, on a rented farm, and as to a path between his house and the still, the finding of malt near this path, the finding of a torn sweater at the still by witnesses who left it where they found it and afterwards saw on the defendant a sweater like it, and testimony that after the still was found the defendant talked about it and claimed may be there was somebody else in it with him,” and said " he was going to have to suffer for it.”

G. B. Richards testified: “I am'sheriff of this county. . . I made response to a complaint for a still near where John Oswalt lived. Something like a half mile from where he lived I found a still and three buckets of beer- — -still beer and empty buckets — some syrup buckets and a still in the furnace, a flake stand, all complete except the worm. . I Those things that are used for manufacturing liquor were there. I did not find any whisky. . The furnace was not hot. I saw evidence of the recent manufacture of liquor there; there had been fire there, ... it might have been two or three days, would say it was as long as a week. . . I saw where there had been spilt beer poured out, that is beer that the liquor has been run off. . . J. F. Williams was with me. . . We did not find anybody at the still. . . John Oswalt lived from that place about half a mile. . . I do not know whose land the still was on — whose place. There seemed to be a main path that led from John’s house out that way, and then a trail leading from that path — not so plain — to the still. It' must be about half way the distance to the still that the other path leads off. The path that leads off the main path was plain enough until we could follow it to the still, and it was a narrow path. It was a broad path. There seemed some indications of travel of mules and horses. I would not be positive whether those indications went any further than the branch or spring. This main path, it led from John’s house in the direction of the still, and then the other path broke away from that, only followed that main path to where that trail left off. I went to John’s house. I did not find anything there. Malt was found by Mr. Williams. He called me to where it was at. I saw where it was. I don’t remember so much about the distance — some hundred yards from the house — John’s house. It was lying on the ground, appeared to have been put there recently. It was pretty well sprouted. It needed to be dried some. I know how they fix the malt up. It is put in the sacks and kept wet, and when it sprouts they dry it out, and then they grind it. That malt is used for to make it ferment. That’s all the malt we found around there — what we found around his place. We did not find any at the still. My recollection is that there was a path that went down to the river from the still. My recollection is I followed it out to a field. We did not know whose field that was, that field was away from the still, about 70 yards; there was timber along the path. We saw where wood had been cut to burn at that still; I believe I did. It was above the path,— the path that I spoke of, leading from the 'still to the main path, that led up to John’s house. I believe I saw signs and evidence of travel there — pretty recent. There was some fresh travel. ■ This main path seemed to be an old path, and the other path seemed to be a new path. That stand and everything appeared to be new. Mr. Dennis might have lived as close as John Oswalt. Mr. Dennis lived northwest, and John lived east. I could not tell whether a body going from John’s house turned off in the bypath. The only thing that I could say is that the travel went into that path, this place where the malt was found, and those still things were in that county — Haralson county. I did not see 1 anything else there that I have not testified about. I do not know anything else about this matter that I haven’t been asked by you. . . There was a pasture between John’s house and the still place. This path leading from John’s house came through John’s yard. I remember about the loose wire that I got tangled up in, in the woods. There was cleared land between John’s house and the still; believe there was a little cleared part on the branch below his house. This path leads to this clearing, went on down on by the clearing. That was cultivated land; there was cultivated land between the still and the house. From where this path struck the cultivated land, until the path turned off towards the still, . . was near a quarter. I did not notice any other path going across from any other direction into this path from John’s house; this distillery, I think, was about west, or a little south of west. Then the direction was from Mr. Dennis’ house. It must have been a little south or southwest. I eouid not see the Dennis house from this place. I do not know how far it was from Dennis’, not exactly. . . I can’t say, but I reckon it was nearer Mr. Dennis’ place. I did not notice any paths from Mr. Dennis’ house, at this place where we saw wood had been cut. We saw where lots of whittling had been done where somebody had been sitting on a log whittling. This malt from John’s house, it might have been 100 yards. It might have been east or northeast from his house. Well, it might have been 100 yards from the road; about the same distance from his house as it was from the road. Those paths I saw going down the river — this path going to the river showed as plain as the one I saw going back to the field, leading towards the field, possibly it was; I could not be sure about that. '. . I did not know whether it went across the field. Both of these paths leading to the still were rather dim. The malt that we found was not towards Mr. Dennis’ house. . . If I am not mistaken, I think the still was near west from John’s house, and this malt may have been a little southeast. . . It was in the woods; my recollection is that it was by a rock. It needs attention about every day, by keeping it damp.” J. F. Williams testified: “ I went with Mr. Richards on this raid. I was acting as deputy or bailiff. I live . . about a mile from John’s house. I am acquainted with the situation down there where the still was found. It is on Mr. Worthy’s place; his mother-in-láw’s place. He lives with his mother-in-law. He rents from his mother-in-law. It was about the line of Mr. John Monroe and her place. The still was in the pasture. The fence was below the still, and John was using the pasture. He had his cattle and stock there, and the still was in the pasture. I don’t think you could see the smoke from that still to John’s house. It was in a hidden place from the public — the still — in the west or northwest'side of the pasture from where John lived. It was down in a bluff. I could see smoke from the still standing in the pasture. I noticed paths from that still. One led back towards John’s, and one of them came in that old path. We followed that down to the river. I saw where wood had been cut around there. Some was cut down the river, and some up the river, above the still place; I think we saw where they picked up some and broke it up — some wood. I saw a still before at that place. I saw the flake stand. The still had everything, complete, to make liquor, all but the worm. . . We found some malt there, sorter right from the trail leading from his house towards the still. I guess it was 35 yards from the trail. It was in a concealed place between two rocks; maybe a peck. It was sprouted sufficiently to be ground into meal. It was wet. It needed no attention, except to dry out and be ground. . . We found a sweater at the still. I don’t know that I could say whose it was. I have seen John wearing a sweater, one that looked like it. It was a light colored knit sweater. I think it was a cotton sweater. It had been worn a good deal. . . I think the sheriff left the sweater there. I never asked John if that was his sweater. I talked to him about it at the still, but I don’t think I ever mentioned the sweater. He never claimed the still. We talked about it, and he told me some things about it; but he claimed, maybe, there was somebody else in it with him. He said there was some other party into it, and that he was going to have to suffer for it all. I did not induce him to make it. He made it freely and voluntarily, on his part. I did not trick him into it. I did advise him to own up and confess it. He just said some other fellows owned it, or an interest in it, and that he was going to have to suffer for it. I never talked to him about it, other than what I told. When he had that conversation with me, it has been several days ago; he was working for me at the time; he talked with me about it immediately after we found the still there. I think he did; maybe he asked me to go on his bond. We did not find anything else there at that still besides a sweater, except the buckets. The sheriff got those buckets and throwed them into the river, syrup buckets. I had not seen the buckets before that time. I did not see anything around that still that I had ever seen before, besides the sweater. I did not see any signs of malt having been ground there. Malt can be ground in a sausage mill. . . The sweater . . was a light-colored one; I don’t know whether it was a white or a gray one. I have seen a number of sweaters like that. . . There are a number of sweaters sold out in this section and when they are worn a good many of them look just like this one. . . I have seen the defendant wear one that looked like this one. I am not willing to swear that it is the same sweater. . . I do not know where the line between Mr. Monroe’s and Mrs. Worthy’s is; I do not swear that this was Mrs. Worthy’s place, not positively, but it was her place I think. There was a good deal of distilling going on around there. . 1 do not think that John could have done all of the distilling done around there. He would have had a big job of it, if he had. . . Oswalt is a poor man, and ' could not have gotten up the material to do it all. That trail that leads away from John’s house is an old trail. It has been there a long time. There was a field cleared at the back of this pasture, and this pasture was between the field and the house. I think John had some of the .field in cultivation. The still place was then way off to the left or right of that place, on the right towards the bank river. It is true that cattle make trails; it is true that that dim trail could have been made by cattle turning off there. Cattle might make a trail. We saw where there had been some whittling down by the trail, 50 or 75 yards. That was between where the trail turned off from the main trail and the still. That was not far from the distillery. It was just upon the hill, this side from the still. The distillery is nearer the Estes place than it is John’s. It was a little closer to the Dennis’. It was about the same distance to the Estes place. The trail leads toward the Estes place. Well, I don’t know that it was malt. It was sprouted corn in a sack. I could not swear that it was intended to make liquor. . . We found that to the left of the trail that turned off; it turned down below his house to the left; the sack of malt from John’s house was about 75 or 100 yards. I do not. know whether anybody else used that trail or not besides him. There was a trail there that leads to the spring that they have used ever since they have lived there, to carry water from the spring. . . John and his mother-in-law, the old lady, lived there, Floyd Worthy didn’t stay there all the time; he stayed there a good deal of the time. . . I had seen John wearing a sweater, one like it. I said I did not know where the line was, but it was inside of the pasture that John used. The fence is on the line; that is what I thought about it. The fence was, I think, about 30 or 35 yards from the still. . . I said the still was under a bluff on the bank of the river. Tou .couldn’t hardly walk around the still. The still was about 35 yards from where I think the line is between Mrs. Worthy and Mr. Monroe. The still is on this side of the river. They used the river for a fence I think. It was woods all around there. There was no eat-tie that grazes any aronnd where this still was, not that day. They couldn’t hardly get down there, I don’t think. I do not know whether they went over on Mr Monroe’s line to make the river a part of the fence or not. They might have had a wire there, but I don’t think they did. There was a wire below the still. . . Cattle could not cross the river.”

W. L. Richards testified: “ I went with the sheriff and Mr. Williams over there last year to make a raid, when they found a still in a pasture near John Oswalt’s house. I went down to the still. I was with them when they found the malt. I saw the sweater found there. I don’t remember to have ever seen it before. I do not know that I ever seen it since. I have seen John Oswalt wearing a sweater since, a gray sweater; it was like the sweater that I found down there, but it wasn’t as black. If that sweater was washed up, I would say about it being the same sweater; just like it. I noticed the sweater that day, and the sweater John wore after that; the fact that they were so much alike is what attracted my attention. Besides the sweater that was found there, I think there was an old worn-out coat. '. . The still was destroyed, and the buckets and things. I do not know whether the sweater was ever given to anybody by me, or my father, or Mr. Williams. I don’t remember seeing the still worm there. I did not see anything there except the flake stand, the barrel of beer, the sweater, and hoe, and buckets. I observed the trail from that still to John’s house. We followed it some distance, towards John’s house; it is a well-beaten path; a part of the way it was, a part of the way a new path. The new path is turned off from the old path. I mean to say an old path leads from John’s house towards- the still, and then a new path leads off from that to the still. I do not remember the path that led to the still through the pasture. I don’t remember about that. The still was just inside the fence; the best I remember there was two wires, we could push it down and go over it. I don’t remember how we got over it, there was a path leading from an old road, and another path from that old path, the path led up to the fence. It was just general travel there. . . We didn’t make any search of the house and barn, just around the premises, and we found nothing except the malt. . . It was corn that was sprouted. I do not know how they make malt. I have seen a good deal of it, and it was just exactly like it; I mean I have seen a good deal of sprouted com. I do not mean to say that sprouted corn is malt. I went along with the officers. The sweater was near the still. It was black. I do not know whether it was greasy. I saw John after-wards with a sweater, a gray one. . . I could not tell the difference between that gray sweater and any other gray sweater, . . only just noticed this sweater carefully. There was a torn place on the sweater. I just picked it up and looked at it. It was torn in the elbow. I don’t remember which elbow. I do not remember which one it was. It was just one of them. That torn place was something like four inches long. I do not know that I ever saw it again. It is true that sweaters like that are sold all over the country by the merchants. I spoke about this path that went down to the cleared field and up beyond the branch; it was the branch that I saw, this path, 25 yards, I guess, on the side of the old road place. I suppose the path could have been made by stock running in there, it is possible. I don’t know whether there was any stock that made that path, but I seen men’s tracks all the way in the path, where there was sand. I do not know how many. It was a new path that had not been traveled mu'ch. It has not been traveled more than the other one. Those are all I remember. . . There was one path leading from the still into another path, and that path went into an old road place; that'was in a general direction to John’s house. The old path went to John’s house. Then all the paths I saw led towards John’s house. I never noticed any tracks only in one — the little path, the path that led from that to the still; there was straw there, but I could tell it was beaten out and traveled. . . I said,-when I found the sweater it was black. I noticed the torn place at that time, and then I noticed the torn place on John, when I first saw the sweater on John; it was a smart while afterwards, and then it was washed up, good and nice; but he could not wash the torn place out.”

G. B. Richards, recalled, testified: “ I saw the sweater there. I did not pay any particular attention to it. . . My recollection is that it was a gray sweater. . . I left that sweater there.”

The defendant, in his statement at the trial, said: “I am not guilty of making this whisky, and do not know anything about it. . . I think there was a little liquor being made down there at that time, but I do not know anything about the malt, or who put it there, and I am not guilty of making any whisky.”

Edwards & Edwards, for plaintiff in error.

J. R. Hutcheson, solicitor-general, contra.  