Opinion
40670.
DECIDED MAY 18, 1964.
Possessing nontax-paid whiskey. Upson Superior Court. Before Judge McGehee.
Bobby B. Mitchell, for plaintiff in error.
Andrew J. Whalen, Jr., Solicitor General, contra.
Where, in the absence of the proprietor of a service station, officers find five gallons of nontax-paid liquor in the bottom of a drain pit under a wash rack located on the outside of the building and accessible to all passers-by, the evidence that the proprietor is the owner of the liquor is merely circumstantial and is insufficient to exclude every reasonable hypothesis save that of the guilt of the accused. Kelly v. State, 91 Ga. App. 421 ( 85 S.E.2d 794); Harper v. State, 85 Ga. App. 252 ( 69 S.E.2d 102); Rhoddenberry v. State, 50 Ga. App. 378 ( 178 S.E. 170). This is true even though the testimony of a witness who swore he saw another than the defendant place the whiskey in the pit be entirely disregarded, since the jury might have found this witness successfully impeached by reason of evidence of bad character.
The trial court erred in overruling the motion for a new trial.
Judgment reversed. Nichols, P. J., and Hall, J., concur.