Opinion
37005, 37006.
DECIDED JANUARY 20, 1958.
Illegal possession of beer. Before Judge Kelley. Dawson Superior Court. October 11, 1957.
Wesley R. Asinof, for plaintiff in error.
Jeff C. Wayne, Solicitor-General, Sidney O. Smith, contra.
Possession of large quantities of beer over a long period of time, coupled with the presence of unusual numbers of persons on the premises drinking beer and attempting to conceal the drinking thereof when observed by police officers, is sufficient to overcome the rule of circumstantial evidence as set out in Code § 38-109, and conviction of possessing beer will be upheld by this court under such record.
DECIDED JANUARY 20, 1958.
The defendant was tried on two indictments at the same time, by consent of counsel for the State and for the defendant. Both indictments charged possessing beer for the purpose of sale. The defendant was convicted on both indictments. A motion for a new trial was filed in each case on the general grounds only. The court denied the motions, and error is assigned here on both judgments.
One indictment was returned at the May term 1957 and the other indictment was returned at the August term of the Superior Court of Dawson County. We will not detail the evidence here. Evidence was offered to show that the defendant operated a cafe and place of business in a country section of Dawson County during the period covered by the indictments. There was evidence that there was a large amount of traffic at the place of business of the defendant; that a large number of customers congregated, consisting of persons from several counties, who possessed and consumed beer outside the place of business; that there was beer inside on tables, in booths, and on the counters; that there were a large number of empty beer cans near the place of business, apparently recently used; that the revenue agents of the State of Georgia found 118 cans of iced beer in the cooler, bearing different brand names and that there was an absence of any other substantial stock of goods in the place of business. There was evidence that the place was kept open on Sunday at times and that when the officers went to the place of business, customers would run, sometimes into the woods. An officer testified that "I saw . . . three or four people come out of the door with beer in their hands." The Sheriff and Deputy Sheriff of Dawson County testified that they went by the place every week and saw practically the same conduct around the defendant's place of business; that they went in the place a number of times and that the customers would endeavor to conceal the beer by putting it out of sight.
Counsel for the defendant contends that the evidence in this case in insufficient to sustain the conviction under the authority of Martin v. State, 94 Ga. App. 53 ( 93 S.E.2d 362). With reference to that case there was only one single instance involved. There the defendant claimed that he was having a private party, whereas in the instant case the sheriff testified that he visited the defendant's place every week and that he found approximately the same situation existing on each occasion with the exception that sometimes there were more people present than at other times. Counsel cites Easterwood v. State, 83 Ga. App. 400 ( 63 S.E.2d 689) as authority for reversal. It will be noted by reading the opinion in that case that the beer was found in a private home, whereas in the instant case the defendant's place of business was in the country some distance from the defendant's home. Counsel cites also Fain v. City of Atlanta, 8 Ga. App. 96 ( 68 S.E. 619), and Smith v. City of Atlanta, 12 Ga. App. 816 ( 78 S.E. 472). The facts in those cases are quite different from the facts in the instant case, and those cases are not authority for a reversal of the instant case. There was not sufficient evidence in the instant case that the beer was for personal use, and there was no sufficient explanation of the presence of the large amount of beer in the place. See Rahal v. State, 90 Ga. App. 727 ( 83 S.E.2d 825). Frequent presence of quantities of beer is sufficient to meet the circumstantial evidence rule of Code § 38-109.
The court did not err in denying the motion for new trials in both cases.
Judgments affirmed. Townsend and Carlisle, JJ., concur.