Opinion
34225.
DECIDED SEPTEMBER 23, 1952.
Violating liquor law; from Lexington City Court — Judge Armistead. June 24, 1952.
Fred A. Gillen, for plaintiff in error.
E. P. Shull, Solicitor, contra.
1. The defendant was convicted of illegally possessing intoxicating liquors upon which the Georgia State tax had not been paid. He filed his motion for a new trial on the general grounds, which was overruled, and he assigns error here. The evidence briefly and substantially shows that the Sheriff of Oglethorpe County, together with Joe Lowe, went to the defendant's home and without a search warrant, but without objection of the defendant, searched his house and premises for whisky. They first searched the dwelling and found some jars and a funnel with the odor of whisky, but found no whisky. They then went to a woodpile and found a pint bottle which contained whisky and a half-pint mayonnaise jar which contained whisky. There is no evidence that the containers of whisky had no stamps on them as alleged in the indictment. Because the allegata and the probata do not correspond, this court is required to reverse the verdict and judgment. There is not sufficient evidence to convict the defendant of the possession of non-tax-paid whisky. The evidence reveals that the defendant and a number of others were having a supper at the defendant's home; that there were a number of men and women in the house and a number outside the house, and around the woodpile where the whisky was found. There is evidence that Joe Lowe, who accompanied the sheriff who searched it, searched the car of one Davenport, who had the reputation of being a bootlegger according to the testimony of Lowe, and that Davenport's car was parked back of and near the defendant's house and woodpile. The evidence as it appears in this record is not sufficient to exclude every reasonable hypothesis save that the defendant rather than someone else in the crowd, put the whisky in the woodpile. There were a number of people present who had opportunity to do so. See Tucker v. State, 86 Ga. App. 550 ( 71 S.E.2d 767).
Judgment reversed. Townsend and Carlisle, JJ., concur.