Opinion
33712.
DECIDED OCTOBER 23, 1951.
Violating liquor law; from Chattooga City Court — Judge Espy. May 30, 1951.
Earl B. Self, for plaintiff in error.
John W. Davis, Solicitor-General, contra.
The evidence on the charge of illegally possessing whisky does not exclude every other reasonable hypothesis save that of the guilt of the defendant, and is therefore insufficient to support the verdict of guilty.
DECIDED OCTOBER 23, 1951.
Lon Freeman was accused, tried, and convicted in the City Court of Chattooga County for possessing illegal whisky. The accusation was in two counts, one of which was fatally defective, under the decision in Fitzgerald v. State, 82 Ga. App. 521 ( 61 S.E.2d 666). Counsel for the defendant in error has filed a motion requesting additional record for the purpose of showing that, although the defendant was illegally convicted under the defective count, this error was corrected by an amendment to the sentence, which specifically sentenced the defendant under the good count only. However, as this point is not essential to a determination of the case, for reasons stated in the opinion, the motion will not be granted.
The evidence in support of the verdict of guilty was substantially as follows: The defendant occupied one room in a house owned by his daughter and son-in-law. This house was kept under observation by the sheriff and certain of his deputies, who saw one man leaving the house with a bottle, which he put in his pocket and another with a pint bottle "under his shirt." Lon Freeman was standing on the porch and talked to certain of the people as they left. Some days later the defendant, his daughter, and son-in-law moved into the next house down the road, and shortly thereafter the officers again observed the house. This time two men came up to the house, whereupon the defendant came out on the porch and the witnesses heard him say, "We don't have any now, but we will have some tomorrow." The next day the police officers searched the premises and located one gallon of non-tax-paid whisky in a clump of bushes beside a trial leading from the house to the outside toilet, the whisky being about 75 yards from the house. The undisputed testimony showed that there were other houses in the near vicinity, one next door; that the defendant only rented one room in the house; that the defendant's son-in-law, who rented the premises, testified he did not own the liquor and did not know to whom it belonged, and that no whisky was found in the defendant's room. In his statement to the jury he contended that he was not guilty and knew nothing whatever about the whisky.
Following his conviction the defendant filed a motion for a new trial on the general grounds, the overruling of which is assigned as error.
It does not appear that the three pieces of evidence upon which the State relies are sufficient, either separately or in connection with each other, to exclude every reasonable hypothesis save that of the guilt of the accused. As to the first, the police officers saw two men come out of the house with bottles in their possession, and saw the defendant talking "to some of them"; but they testified that they did not know what was in the bottles, and in any event they did not testify that the defendant, who was on the porch, gave them the bottles. As to the second, the statement, "We will have some tomorrow," without more, is not a sufficient basis for the assumption that the thing referred to was necessarily moonshine whisky. As to the third, whisky found by a trial or ditch or in bushes at some distance from the house, and especially when on property not under the control of the defendant, has frequently been held insufficient as the foundation of a conviction. Serritt v. State, 44 Ga. App. 269 ( 161 S.E. 279); Weehunt v. State, 80 Ga. App. 368 ( 56 S.E.2d, 148); Gray v. State, 51 Ga. App. 458 ( 180 S.E. 758); Wright v. State, 48 Ga. App. 302 ( 172 S.E. 687); Jackson v. State, 36 Ga. App. 211 ( 136 S.E. 286); Roper v. State, 67 Ga. App. 272 ( 19 S.E.2d 746); Summerville v. State, 68 Ga. App. 13 ( 21 S.E.2d 909). In Young v. State, 36 Ga. App. 273 ( 136 S.E. 556), cited by the solicitor-general, whisky was found in the room rented by the defendant. In Warren v. State, 53 Ga. App. 221 ( 185 S.E. 385), where one occupied a house jointly with his daughter and son-in-law, and the two latter testified that whisky found in the house did not belong to them, the conviction was authorized. However, in Toney v. State, 30 Ga. App. 61 ( 116 S.E. 550), where whisky was found in a house occupied by the defendant, his daughter, and son-in-law, and neither testified that the whisky did not belong to them, the conviction was unauthorized. In the present case, the son-in-law testified to this effect, but the daughter did not. Further, it was shown that the whisky was found some distance from the house near a trail, other houses being in close proximity, and the possibility that one of these persons might have placed the whisky in the bushes was not negatived.
As the evidence is insufficient and the conviction unauthorized, it is unnecessary to obtain additional record for the purpose of showing that the defendant was not sentenced under the defective count of the indictment.
The trial court erred in overruling the motion for a new trial.
Judgment reversed. Gardner, J., concurs. MacIntyre, P. J., concurs specially.
In order to authorize a conviction in this case, it must appear that the whisky in question was found in the actual or constructive possession of the defendant. There is no evidence of the defendant's possession of the whisky, unless it appear from the evidence that the rule in Isom v. State, 32 Ga. App. 75 ( 122 S.E. 722), is applicable to this case. Briefly, the rule in the Isom case is that, as between the head of a family and members of his family who reside together, the head of the family is presumed to be in possession of the house, the premises, upon which they reside, and all the personal property appertaining thereto, including intoxicating liquors. There is not sufficient evidence present in this case to authorize the jury to find that the defendant was head of the family on whose premises the liquor was found. Upon this point the testimony of officer Lyons was that the defendant "lived there on the Selman Place [where the State contends the whisky was found] with Paul Hill [the defendant's son-in-law] and Hill's wife," but that he (Lyons) did not know who rented the Selman Place. Officer Henderson testified upon this point only that he and Lyons went to the house in question where Paul Hill, his wife, and the defendant Lon Freeman lived. Paul Hill testified that he and his wife lived on the Selman Place, where the whisky was found; that he rented the house and the lands around it; and that the defendant did not rent the property, but rented one room in the house from him.
The instant case is distinguishable from the cases of Brooks v. State, 66 Ga. App. 646 ( 19 S.E.2d 43), and Hill v. State, 50 Ga. App. 288, 290 ( 177 S.E. 826), in that in those cases the evidence was that no one lived in the houses where the whisky was found other than the defendants and their families, of which the defendants were the heads; and thus the rule in the Isom case, supra, was applicable in those cases; but, as I have shown, not applicable to the instant case. See, in this connection, Rhoddenberry v. State, 50 Ga. App. 378 ( 178 S.E. 170).