Opinion
28865.
DECIDED MAY 2, 1941.
Violating liquor law; from Columbus city court — Judge Bowden. November 9, 1940.
R. Terry, for plaintiff in error.
J. R. Thompson Jr., solicitor, contra.
Circumstantial evidence held not sufficient to authorize conviction of unlawfully possessing liquor. (See dissent.)
DECIDED MAY 2, 1941.
The defendant was convicted of possessing non-tax-paid whisky. The evidence tending to connect him with the offense was wholly circumstantial, and was not sufficient to exclude every reasonable hypothesis save that of his guilt. The verdict was not authorized by the evidence, and the refusal to grant a new trial was error.
Judgment reversed. Gardner, J., concurs.
The whisky was found on the premises of the defendant, in the back yard under a rabbit-pen within a few feet of the defendant's house, as close to other houses as to that of the defendant, this section being thickly populated and the houses being very close to each other. However, the police officer who searched the defendant's premises testified that "the surface of the ground showed recent digging where the liquor was buried, and it was only a few feet back of Arthur Thomas's [defendant's] house, on his premises. He was at home at the time. We have raided his house and premises several times before, and found non-taxed liquor on several occasions. I remember once recently when he pled guilty, and also once recently when the jury convicted him for the possession of non-taxed liquor." The defendant contended in his statement that he did not know the whisky was there. "It is frequently said that evidence of other crimes is admissible to . . rebut a defense based upon evidence tending to show an absence of knowledge." 105 Am. St. R. 997. See Phillips v. State, 51 Ga. App. 675, 678 ( 181 S.E. 233). I think the evidence in this case that the whisky was on the defendant's premises, strengthened by the testimony that he was accustomed to deal in illicit liquor, or rather was accustomed to keep such on these identical premises, authorized the jury to find that he knew it was there on the occasion in question. Morgan v. State, 62 Ga. App. 493 ( 8 S.E.2d 694); Cole v. State, 120 Ga. 485 ( 48 S.E. 156).