Opinion
33108.
DECIDED JULY 14, 1950.
Violating liquor law; from Chattooga City Court — Judge Rivers. March 30, 1950.
Bobby Lee Cook, for plaintiff in error.
John W. Davis, Solicitor-General, pro tempore, contra.
1. All who aid and abet in the commission of a misdemeanor, as well as those who immediately perpetrate it are principals. Southern Express Co. v. State, 6 Ga. App. 31 ( 64 S.E. 341); Bracewell v. State, 21 Ga. App. 133 ( 94 S.E. 91).
2. There is a legal rebuttable presumption that all the household effects, including any intoxicating liquors, belong to the head of the house. Baron v. State, 46 Ga. App. 829 ( 169 S.E. 323); Penney v. State, 43 Ga. App. 466 ( 159 S.E. 289).
3. Where the State relies for a conviction on circumstantial evidence alone, the proved facts must not only be consistent with the hypothesis of guilt, but must exclude every other reasonable hypothesis except that of the guilt of the accused. Code, § 38-109 and cases there cited.
4. In view of the foregoing principles of law, the evidence in the instant case is sufficient to overcome the presumption that any whisky that may have been in the home was in the charge, custody and control of the mother of the defendant, she being the head of the house. It is sufficient to have authorized the jury to find that the defendant was aiding and abetting in the commission of a misdemeanor and actively participating therein. It is also sufficient to exclude every other reasonable hypothesis save that of the guilt of the accused.
The judgment of the trial court overruling the motion for a new trial is without error.
Judgment affirmed. Sutton, C.J., MacIntyre, P.J., Felton and Worrill, JJ., concur. Townsend, J., dissents.
The defendant was tried in the City Court of Chattooga County on an accusation charging her with the offense of unlawfully possessing whisky. According to the evidence, two police officers went to the home of the mother of the defendant, who lives next door to the defendant in the City of Summerville, during the daytime, and found the defendant, her mother and another person sitting on the front porch. Upon the approach of the officers the defendant and her mother immediately got up and went into the house. One of the police officers came to the front door and upon trying it found that it was locked. The other police officer went to the back door and found it was locked. The latter officer heard some liquid going down the kitchen sink drain which empties out into a drain ditch by the side of the house. Shortly thereafter the defendant was heard to say, "All right, Mama, let them in now." The defendant's mother then opened the house. The officers came in and searched the premises. An open fruit jar was found on a cabinet somewhere in the house. This fruit jar had the odor of whisky but contained none. The kitchen sink had the odor of liquor about it, as had the ground outside where it emptied into the drain. While in the house the officers noticed that the hydrant was dripping with water in the kitchen sink.
The defendant in explanation of her presence in the home stated that due to her mother's illness she was cooking for her. She denied any knowledge of or connection with the unlawful possession of whisky.
Upon her conviction the defendant filed a motion for a new trial on the general grounds, and the overruling of this motion is assigned as error.
Applying the principles of law laid down in headnotes 1, 2 and 3 to the statement of facts hereinafter set forth, it is my opinion that the evidence in the instant case is not sufficient to overcome the presumption that any whisky that may have been in the home was in the charge, custody and control of the mother of the defendant, she being the head of the house. Nor is it sufficient to show that the defendant aided and abetted in the commission of a misdemeanor and thereby became guilty thereof as a principal. Nor is the evidence sufficient to exclude every other reasonable hypothesis save that of the guilt of the accused.