Opinion
33465.
DECIDED JULY 10, 1951.
Certiorari; from Gwinnett Superior Court — Judge Pratt. December 13, 1950.
A. G. Liles, for plaintiff in error.
Hope D. Stark, Solicitor-General, J. Roy Merritt, Solicitor, contra.
Undisputed evidence to the effect that the defendant is the proprietor of a dance hall and soft drink establishment, that no liquor was found within such establishment except in the exclusive possession of a third person, and that four bottles were found in the grass and on the steps outside the building, that there were at least 25 customers present at the time all of whom had access to the places where the liquor was found equal to that of the defendant, is insufficient to exclude every reasonable hypothesis save that of the guilt of the defendant on a charge of possessing intoxicating liquors. Rhoddenberry v. State, 50 Ga. App. 378 ( 178 S.E. 170); Smith v. State, 150 Ga. 755 (2) ( 105 S.E. 364); Kennedy v. State, 23 Ga. App. 141 ( 97 S.E. 894); Wright v. State, 25 Ga. App. 176 ( 102 S.E. 834); Reese v. State, 42 Ga. App. 184 ( 155 S.E. 373); Roper v. State, 67 Ga. App. 272 ( 19 S.E.2d 746); Summerville v. State, 68 Ga. App. 13 ( 21 S.E.2d 909); Wright v. State, 48 Ga. App. 302 ( 172 S.E. 687). It follows that the verdict was unauthorized and the superior court erred in overruling the certiorari.
Judgment reversed. Gardner and Townsend, JJ., concur.
DECIDED JULY 10, 1951.
Bonnie Gambol was tried and convicted in the City Court of Buford on an accusation charging him with the possession of intoxicating liquors. Gwinnett County, where the offense is alleged to have been committed, is a dry county. The evidence introduced on the trial of the case was substantially as follows: The defendant conducted a place of business in Gwinnett County known as the White Lily, consisting of a dance hall, office, and adjacent rooms in which he sold sandwiches, soft drinks, and similar merchandise. On June 3, 1950, two policemen of the City of Buford entered the defendant's premises; and, although they had no search warrant, the defendant told them to go ahead and look around. Seeing the defendant glance to his right, one of the policemen entered an adjoining room on the right and there found a girl, apparently, a customer, with a pint of whisky in her possession. Outside the back screen door on the steps, partly covered by an old shirt, two more half pints of whisky were located. There were three empty bottles in the hall. Before the policemen entered the defendant's premises, one of them had seen a boy throw some liquor on the ground and had chased him but did not catch him. The premises were open for business and there were between 25 and 30 people present in or near the defendant's place of business. A search of the yard revealed another pint and one-half of liquor at the side of the building, hidden in the grass under the eaves of the building. There was no evidence which directly connected any particular person with any of the liquor except the pint which was found in the possession of the girl. There was no evidence tending to show that the defendant, who was the proprietor, furnished liquor to anyone. There was some evidence, confirmed by the defendant's statement, which indicated that the defendant was aware that his customers occasionally came on the premises with liquor in their possession, and that he had previously told the police that if they would come out and watch, these people with liquor in their possession would see them and try to throw the liquor away and that the police could determine by that means who possessed liquor.
The jury returned a verdict of guilty, the judge of the Superior Court of Gwinnett County sanctioned the defendant's petition for writ of certiorari on July 11, 1950, but subsequently overruled the petition, and this judgment is assigned as error in this court.