Opinion
31962.
DECIDED APRIL 24, 1948.
Violating liquor law; from Walton Superior Court — Judge West. January 3, 1948.
Orrin Roberts, for plaintiff in error.
D. M. Pollock, Solicitor-General, contra.
1. Where a defendant, a tenant farmer, is on trial charged with the offense of possessing unstamped liquor, and the evidence shows that the same was found in an uninclosed field from 100 to 225 yards back of his house in weeds and bushes about 5 or 6 feet from a path leading from the public road in front of his house through the yard to a pasture where the defendant, the landlord, and the members of their families kept cows and other livestock, and other people living nearby had access to the pasture and the path leading to it, this evidence does not exclude every other reasonable hypothesis save that of the guilt of the accused, and accordingly is insufficient to support a verdict of guilty. See Code, § 38-109; Roper v. State, 67 Ga. App. 272 ( 19 S.E.2d 746); Gray v. State, 51 Ga. App. 458 ( 180 S.E. 758); Wright v. State, 48 Ga. App. 302 ( 172 S.E. 687); Summerville v. State, 68 Ga. App. 13 ( 21 S.E.2d 909); Graham v. State, 51 Ga. App. 93 ( 179 S.E. 637); Jelks v. State, 36 Ga. App. 638 ( 137 S.E. 840).
2. The sole assignment of error contained in the amended motion for new trial is without merit.
DECIDED APRIL 24, 1948.
Albert Palmer was indicted at the November term, 1947, of the Superior Court of Walton County, for the offense of having, controlling, and possessing alcoholic, distilled and spirituous liquors and beverages which did not bear the tax stamps as required by law. The jury trying the case returned a verdict of guilty, and the defendant filed a motion for new trial which was later amended by adding one special ground. The judge overruled said motion for new trial as amended, and on this judgment error is assigned.
The evidence discloses: that certain officers went to the home of the defendant to search his premises for unstamped liquor; that a keg containing 3 or 4 gallons of peach brandy was found 5 or 6 feet from a path in an uninclosed field from 100 to 225 yards back of the defendant's house; that the path led from the public road by the side of the defendant's house to a pasture where there had been a gate and some bars made out of wire; that the defendant and members of his family had access to this pasture; that also the landlord, who lived directly across the public road and testified that the liquor was not his, and the members of his family, used the pasture for cows and other livestock; that other people lived in the immediate proximity and could travel this path when they desired to do so; that, while the defendant was in the yard working on an automobile, someone in his house poured a liquid out and it ran out of the house under the floor; and that this liquid smelled like peach brandy. Evidence of the liquid that was poured out in the house was offered by the State only as an additional circumstance to throw light upon the possession of the peach brandy found in the field, the court having instructed the jury that no conviction could be based upon the liquid poured out by someone in the house.
1. The first headnote requires no amplification, because the section of the Code and the cases cited constitute ample authority for this ruling.
2. The special assignment of error contained in the amended motion for new trial complains of an excerpt from the charge of the court, wherein the judge charged the jury the principle of law that the husband is recognized as the head of the family and as such is presumed to own and control the household effects including intoxicating liquors that may be found therein. This part of his charge related to certain evidence that a liquid smelling the same as the peach brandy which was found alongside the path, was poured out by someone in the house so that it ran through the floor, while the defendant himself was in the yard working on the automobile. The judge instructed the jury that there could be no conviction based on evidence of the liquor that was poured through the floor of the house. It was offered as additional circumstantial evidence against the defendant. It was admissible as such, but before it could be treated as a circumstance against the defendant, there must have been an inference that it belonged to him. Therefore, and in this connection, the court properly submitted to the jury the principle of law complained of in the amended motion for new trial.
However, the evidence, even with this circumstance, is still insufficient to convict.
In Roper v. State and Wright v. State, supra, these being cases in which the evidence was held insufficient to support the verdict, in addition to circumstances equally as strong as those of the instant case other receptacles were found on the premises which had recently contained whisky. We think that the pouring out of the liquid in the house, smelling the same as that found by the side of the path, is no stronger circumstance than that of finding other receptacles on the premises which had recently contained whisky.
While the special assignment of error is without merit, the evidence is insufficient to support the verdict, and the trial court erred in overruling the motion for new trial.
Judgment reversed. MacIntyre, P. J., and Gardner, J., concur.