lamenting use of other liquor sales in moonshining cases to prove course of conduct or bent of mind
How later courts described this case
- lamenting use of other liquor sales in moonshining cases to prove course of conduct or bent of mind
- reversing Johnson v. State, 154 Ga. App. 793 (270 SE2d 214) (1980)
- Jordan, P. J., and Hill, J., dissenting
Written by the judges who cited it.
The opinion
Hill,
Justice, dissenting.
Identity and intent are matters which the state must prove in every criminal case (except those few crimes where criminal negligence is involved, and in those cases identity remains an issue). The majority hold that evidence of separate crimes committed by the defendant which are similar or logically connected to the crime being tried is admissible to prove identity and intent. 1 The converse rule found by the majority is that evidence of separate crimes committed by the defendant which are neither similar nor logically connected to the crime being tried are inadmissible (unless the defendant puts his character in issue).
The majority silently treat all drug sale crimes as similar (see the Court of Appeals opinion in this case). That is, the sale of one ounce of marijuana in a pool hall is similar or logically connected to the sale of a boatload of cocaine or morphine at dockside. Similarly, a burglary of an occupied house by a single, masked and armed burglar would be similar or logically connected to a railroad car burglary by a group of unarmed men wearing overalls as disguises. But see Moody v. State, 237 Ga. 775 ( 229 SE2d 619 ) (1976).
Bacon v. State, 209 Ga. 261 ( 71 SE2d 615 ) (1952), is one of this state’s leading cases on this subject. In Bacon , the defendant was being tried for a burglary which occurred on December 21, 1950. Evidence of conviction of three attempted burglaries (November 25, 1950; December 29, 1950; and March 15, 1951, as well as three 1946 guilty pleas to burglary) was held inadmissible by this court. Reversing the Court of Appeals’ approval of the introduction of such evidence, this court held (at pp. 263-264): “[CJriminal intent is an essential element in every crime where criminal negligence is not involved [cite]; and to hold, as the majority opinion of the Court of Appeals in this case does, that evidence of other offenses is always admissible to show intent, whether or not there be any logical connection between them and the case on trial, would be to abolish the general rule, and to establish the exception as the general rule *658 without any exception thereto.”
While the majority cite Bacon v. State, supra, I believe they have not applied it. In fact, I submit they have overruled Bacon . I therefore dissent.
I am authorized to state that Presiding Justice Jordan joins in this dissent.
This rule is contrary to Code Ann. § 38-415, which provides that “... no evidence of general bad character or prior convictions shall be admissible unless and until the defendant shall have first put his character in issue.”