Opinion
39504.
DECIDED JUNE 18, 1962.
Possessing illegal whisky. Bleckley Superior Court. Before Judge Whaley.
A. Russell Ross, for plaintiff in error.
Albert D. Mullis, Solicitor General, contra.
The court did not err in overruling defendant's motion for a new trial.
DECIDED JUNE 18, 1962.
The defendant was convicted of possessing non-tax-paid whisky. Briefly, the evidence shows that on May 27, 1961, acting under and by virtue of the authority of a search warrant, two deputies of the Sheriff of Bleckley County went to the defendant's dwelling house in that county to search for non-tax-paid liquors; that when they arrived at his house the defendant was not there, but shortly thereafter the defendant and his wife passed by the house in a pickup truck; that the deputies stopped them and informed the defendant that they had a search warrant authorizing them to search his house for illegal liquor; that the deputies, the defendant and his wife went back to the defendant's house; that the defendant's wife "made for the back door and went in just ahead of" one of the deputies "and shoved the door closed and apparently tried to lock it as" the deputy "had to force the door to get in"; that upon hearing glass being broken in the vicinity of the bathroom, the deputy, who was just behind the defendant's wife, forced the back door open and entered the house; that the other deputy and the defendant entered the house through the front door; that the deputies then proceeded to search for non-tax-paid liquor, finding, in the hallway near the bathroom, a broken fruit jar containing a small amount of non-tax-paid liquor; that they found broken glass in the bathtub; and that "the floor . . . was wet with moonshine liquor." The officers found eight one half pint bottles of tax-paid whisky in the defendant's truck. The defendant had only one dwelling house in Bleckley County. The search warrant and the broken fruit jar containing the small amount of liquor seized by the officers were admitted in evidence.
The defendant's sister, a witness for the defendant, testified that her home was about 50 yards from and in full view of the defendant's house; that on the date the officers searched the defendant's house, the defendant and his wife left their house about 2 o'clock p. m., "and did not return until around dark and got back home about the same time the officers arrived"; that about 4 o'clock that afternoon "the defendant's young son about 18 years old drove up to his father's house and was accompanied by another young man. . . These two young men seemed to be drinking and got out of their car and went into the rear of the defendant's house and stayed in the house 40 minutes to an hour and left. . . They had something that looked like a paper sack from where I was, when they went in the house but did not have it when they came out. I thought they were drinking because they were talking loud and boisterous and acted like they were having a good time."
The defendant made the following statement to the jury: "Gentlemen of the jury, I am not guilty. Me and my wife left home about 2 o'clock on May 27, 1961, which was on Saturday afternoon. We went to Cochran in my pickup truck to get groceries for the week and supply and stayed in Cochran until late. When we started to go home, we decided we would go to Hawkinsville and buy some legal bonded red whisky for our own personal use. We understood that we could lawfully buy and possess as much as 2 pints or 4 half pints each, so we went to a legally licensed liquor store in Hawkinsville and I bought 4 half pints and my wife bought 4 half pints. We then went home and found the officers there who searched our house. We did not have any whisky in the house of any kind when we left to go to Cochran, and did not go back home that afternoon, and could not understand how whisky got in the hall in front of our bathroom. We knew we did not put it, there and did not know who did put it there. We had no whisky until we went to Hawkinsville and bought the legal whisky, which was the reason we went and got it. If we had any whisky in our house we would not have gone to Hawkinsville and bought any and that was all we had or knew anything about."
1. "Where the husband, the defendant, and his wife are both present in a house admitted by the defendant to be his home, the wife being in a room thereof destroying intoxicating liquors, and the husband being on the porch thereof when the officers arrive, the finding of such intoxicating liquors in the home under such circumstances is direct evidence of the fact of the defendant's guilt, for when the officer testified that he saw and found the whisky in the home of the defendant, this was testimony which was the legal equivalent of testimony that the officer saw and found the whisky in the possession of the defendant." Scott v. State, 57 Ga. App. 489 (4) ( 195 S.E. 923). See Vinson v. State, 102 Ga. App. 327 ( 116 S.E.2d 240); Morris v. State, 51 Ga. App. 145 ( 179 S.E. 822); Cline v. State, 102 Ga. App. 745 ( 117 S.E.2d 887).
"In this State the husband is recognized by law as the head of his family, and, where he and his wife reside together, the legal presumption is that the house and all the household effects, including any intoxicating liquors, belong to the husband as the head of the family. This presumption of course is rebuttable." Isom v. State, 32 Ga. App. 75 ( 122 S.E. 722). See Black v. State, 41 Ga. App. 349 ( 152 S.E. 922). Whether or not the defendant presented sufficient facts to rebut the presumption arising from the finding of the non-tax-paid liquor in his dwelling house was a question for the jury. See Bollen v. State, 53 Ga. App. 359 ( 185 S.E. 837); Acker v. State, 78 Ga. App. 819 ( 52 S.E.2d 559); Griffin v. State, 97 Ga. App. 772 ( 104 S.E.2d 511).
The evidence authorized the conviction of the defendant, and the general grounds of his motion for a new trial are without merit.
2. The single special ground of the defendant's motion for a new trial complains that the court erred in admitting in evidence, over defendant's objection, the testimony of the arresting officers relative to the discovery of the non-tax-paid whisky in his house. The basis of this ground is that the whisky was found and seized as the result of an unlawful search of the defendant's dwelling house. This contention is without merit because the evidence shows, without contradiction, that the officers entered and searched the house for non-tax-paid whisky under the authority of a search warrant.
Movant also contends in this ground that the search warrant did not sufficiently describe the "place and premises to be searched and the thing to be seized and . . . that since the warrant was taken out by Billy Josey . . . one of the officers, he could not lawfully execute said warrant." However, the special ground does not set forth the substance of the search warrant, or point out such parts of the record or brief of evidence by page number where same may be found. The ground is incomplete and insufficient to raise any question for decision by this court regarding the legal sufficiency of the search warrant. See Maxwell v. Hollis, 214 Ga. 358 ( 104 S.E.2d 893); Childers v. State, 100 Ga. App. 255 ( 110 S.E.2d 697).
Judgment affirmed. Nichols, P. J., and Jordan J., concur.