Opinion
35647.
DECIDED APRIL 18, 1955.
Violating liquor law. Before Judge Espy. Chattooga City Court. January 12, 1955.
Bobby Lee Cook, for plaintiff in error.
Earl B. Self, Solicitor-General, contra.
The evidence on the charge of possessing illegal liquor, although circumstantial, was sufficient to negative every other reasonable hypothesis save that of the guilt of the accused.
DECIDED APRIL 18, 1955.
The defendant was tried and convicted in the City Court of Chattooga County on an accusation charging him with possession of illegal liquor. The evidence shows without dispute that certain officers searched the house and premises where the defendant and his wife and some minor children had been living for four or five years; that whisky, the containers of which did not bear State revenue stamps, was found by the officers in a quart fruit jar on the kitchen table and in a half-gallon fruit jar under a cabinet located in the kitchen; that there were no houses within a quarter mile of the defendant's home; that a barn was located on the defendant's premises about 300 yards west of his house; that a trail leads from this barn westwardly toward and on up a mountain; that on this trail, about 300 yards from the barn, 4 gallons of whisky, the containers of which did not bear the State revenue stamps, were found; that, when the officers arrived, the defendant was recognized by one of them plowing in a field about 200 yards from the barn; that he left while the officers were searching the house; that they looked for him for about an hour, but were unable to find him; that in the house living with the defendant was a married daughter and her husband; and that, visiting in his home, was a daughter-in-law who was there at the time the whisky was found. The married daughter testified without dispute that she and her husband were at the "other house" about a quarter of a mile away when the whisky was found; that she knew nothing about this whisky, and it was not put there by either her or her husband. There was no evidence as to when the whisky was placed in the kitchen; that the whisky found on the trail was on the premises of the defendant; and no evidence indicating whether the defendant was 100 or 500 yards from the house when the officers made their search. The evidence indicates he could have been as little as 100 yards or as much as 500 yards away, but, within these limits, does not show his location, and therefore it does not appear that he necessarily knew of the officers' presence or that they were looking for him. The defendant in his statement denied any knowledge of the presence of whisky on the premises.
Upon conviction the defendant made a motion for a new trial on the general grounds, and the denial of this motion is assigned as error.
The evidence here, being entirely circumstantial, must, under the provisions of Code § 38-109, be sufficient to exclude every other reasonable hypothesis save that of the guilt of the accused. In cases such as this, also, the State's case receives the benefit of the legal presumption as follows: "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 (1) ( 122 S.E. 722); Young v. State, 22 Ga. App. 111 ( 95 S.E. 478); Hendrix v. State, 24 Ga. App. 56 ( 100 S.E. 55). Construing these two legal principles together, the evidence here is sufficient to show the guilt of the defendant, to the exclusion of his wife and his minor children, by reason of this presumption. The married daughter and her husband are excluded under the evidence. This leaves us the defendant and the daughter-in-law, and the problem of determining whether the hypothesis of the defendant's guilt was no more reasonable than the hypothesis that she is the guilty party. In determining this question, the evidence of flight is not considered, as it was not sufficient to establish such an inference. The defendant may have been as far away from the house as 500 yards. The jury could have no more knowledge about the proximity of the defendant than appears in the record. There is no evidence that the defendant ever saw the officers on the premises. Word was left for him to come in and make bond. He did so the next day. Accordingly, there is no evidence of flight. Also, the presence of whisky some 600 yards away from the house in the woods is not considered, there being no evidence that it was on the premises of the defendant or that he was in any way connected with it. See Bowen v. State, 90 Ga. App. 407 (1) ( 83 S.E.2d 255); Voyles v. State, 85 Ga. App. 354 ( 69 S.E.2d 780), and citations.
However, the fact that another person, such as the daughter-in-law here, is merely visiting on the premises, nothing further being shown, and it not appearing that such visitor had any right to joint control and occupancy of the premises, is not of itself sufficient to require a reversal. See Ealey v. State, 40 Ga. App. 727, 728 ( 151 S.E. 400); Black v. State, 41 Ga. App. 349, 350 (1) ( 152 S.E. 922); Smith v. State, 68 Ga. App. 861 ( 24 S.E.2d 702); Hill v. State, 50 Ga. App. 288 (2) ( 177 S.E. 826). While we disapprove the rule in the latter case, in that it goes to the extent of holding that several grown boys living with the defendant are still such members of his family as a matter of law that the presumption remains that the liquor belongs to him as head of the family, nevertheless, the case is authority for what is here held. Where, on the other hand, as in Toney v. State, 30 Ga. App. 61 ( 116 S.E. 550), it appears that another family, composed of the defendant's married son and daughter-in-law, also live on the premises and use it jointly with the accused, there must be, to exclude every reasonable hypothesis save that of the guilt of the accused, some evidence that such other person, the head of his own household, did not possess the illegal liquor without the knowledge of the defendant.
It follows, therefore, that the evidence, although circumstantial, was sufficient to support the conviction, and that the trial court did not err in denying the motion for a new trial.
Judgment affirmed. Gardner, P. J., and Carlisle, J., concur.