Opinion
31749.
DECIDED OCTOBER 1, 1947.
Violating liquor law; from Floyd Superior Court — Judge Porter. July 9, 1947.
M. G. Hicks, Mrs. Charles Camp, W. T. Maddox, for plaintiff in error.
E. J. Clower, Solicitor-General, G. W. Langford, T. G. Espy Jr., contra.
When whisky is found on the premises of the defendant, which are in his exclusive control and possession as husband and head of the family, the inference arises that the possession is that of the defendant and is with his knowledge and consent, but the inference is a rebuttable one. Gray, v. State, 66 Ga. App. 50 (2) ( 16 S.E.2d 916); Dardarian v. State, 55 Ga. App. 286 ( 190 S.E. 48); Autrey v. State, 18 Ga. App. 13 (2) ( 88 S.E. 715); Morgan v. State, 62 Ga. App. 493 ( 8 S.E.2d 694); Thomas v. State, 64 Ga. App. 315 ( 13 S.E.2d 92); Young v. State, 22 Ga. App. 111 (2) (95 S.E. 478).
DECIDED OCTOBER 1, 1947.
Hill Haney, defendant in error, was convicted of possessing more than one quart of whisky in Floyd County, a "dry" county. His motion for a new trial as amended was overruled and he excepted.
The single ground of the amended motion for a new trial alleges that the court erred in charging the jury as follows: "I charge you, gentlemen, that the husband is head of the family, and as head of the family is in possession and control of the premises."
Evidence introduced at the trial was to the effect, that when the officers raided the defendant's premises, the defendant was not present and his wife was arrested. That when the defendant came to the jail to obtain bond for his wife he, too, was arrested. The defendant in his statement testified that at the time he was working in Atlanta, his brother-in-law was living in the house with him, and that he knew nothing about the whisky until he received a telephone call that his wife was in jail.
The charge was error, in that it infers as a matter of law that if they found the defendant to be in control of the premises as head of the family, he would as a matter of fact be in control and possession of the whisky, without further instructing the jury that there is a legal presumption that the whisky was in the possession of the defendant, but the presumption is a rebuttable one. See Young v. State, 22 Ga. App. 111 (2).
When whisky is found on the premises of the defendant which are in his exclusive control and possession as husband and head of the family, the inference arises that the possession is that of the defendant and is with his knowledge and consent. However, this inference is rebuttable. Grey v. State, 66 Ga. App. 50 (supra). See also Dardarian v. State, 55 Ga. App. 286, Autrey v. State, 18 Ga. App. 13 (2), Morgan v. State, 62 Ga. App. 493, and Thomas v. State, 64 Ga. App. 315 (supra).
The case, being reversed on the special ground, it is unnecessary to discuss the general grounds.
Judgment reversed. MacIntyre, P. J., and Gardner, J., concur.