Opinion
34141.
DECIDED JULY 14, 1952. REHEARING DENIED JULY 28, 1952.
Violating liquor law; from Walton Superior Court — Judge West. April 19, 1952.
Orrin Roberts, for plaintiff in error.
D. M. Pollock, Solicitor-General, contra.
1. The evidence here as to the defendant's possession of non-tax-paid liquor, although circumstantial, was sufficient to exclude every reasonable hypothesis save that of the guilt of the accused. It is not necessary, even in criminal cases, to exclude every conjecture coming within the bounds of remote possibility, but only to exclude reasonable hypotheses and reasonable inferences.
2. The court did not err in permitting the arresting officer to testify that he raided the defendant's premises as the result of a report received by him without, at the same time, compelling the officer to state by whom the report was made.
DECIDED JULY 14, 1952 — REHEARING DENIED JULY 28, 1952.
Lucky Harris was indicted and convicted in the Superior Court of Walton County for possessing illegal liquor. The evidence, which was entirely circumstantial, was to the effect: that the defendant with his family occupied a house and yard which was enclosed by a fence; that the nearest house was one occupied by his father and brother, which was up the road about 100 yards across a hog lot; that the nearest houses up the road were a quarter of a mile away; that tradesmen generally had a right to use this road as far as a gate through which it passed, directly behind the defendant's house, into a pasture; that there was no other general access to the pasture; that three pastures cornered at this location, and in the corner just over the fence and about 95 steps from the defendant's house were bales of hay, which the defendant had helped to stack and place there about two days previously; that, as the officers entered the premises, the defendant was standing by one of the bales of hay; that when he saw the officers he began to carry the hay to feed the owner's cows in the next pasture; that the officers went to where the defendant had been standing and found several pint bottles, a half-gallon jug full of non-tax-paid liquor, and another about half full, together with a funnel with a fresh smell of whisky, all buried in the hay. Within the house they found four or five empty half-gallon fruit jars containing what was described as a fresh smell of white liquor, and some tumblers with the same odor containing a drop or two of whisky. There was also testimony that, at a period within two years of the present raid, officers had found a half-gallon jar of illegal whisky at the edge of the defendant's yard in front of his house, on the side leading to his father's house. Neither of these caches appears to have been actually within the fenced-in portion of the defendant's yard, although closely adjacent thereto.
From a verdict of guilty the defendant filed a motion for new trial on the general grounds, which was later amended by adding one special ground, and the overruling of this motion is assigned as error.
1. As was pointed out in Corbin v. State, 84 Ga. App. 763 (1) ( 67 S.E.2d 478), and citations, a conviction for the possession of illegal liquor resting entirely upon circumstantial evidence will not be upheld where it appears that the liquor, even though upon the premises of the defendant, is so located that others than the defendant might equally have had access thereto without the defendant's knowledge, as such evidence does not exclude every reasonable hypothesis save that of the guilt of the accused. In this case, although the liquor was not located within the fenced-in part of the premises where the defendant lived, it was very close thereto and in a part of the pasture where it appeared that the defendant customarily worked, and to which others did not have such access. To get to the hay a person would have had to pass the defendant's house and unlatch the gate and step into the pasture to the point where the defendant had helped to pile the hay, only two days previously, which he had been using since then to feed the cows.
The previous occasion on which liquor was found just outside the defendant's yard, but next to the road and between his house and another, would not be sufficient upon which to base a conviction, but the cache found in the hay, together with the proof that the defendant had recently had liquor in fruit jars and tumblers in his house, and his conduct upon the first approach of the officer, were sufficient to authorize a jury to find that the defendant had in his possession and control a quantity of non-tax-paid liquor, and was guilty of the offense charged.
2. Error is assigned on the ruling allowing the sheriff to testify that he raided the defendant's premises as a result of a report received by him, but not requiring him to name at the same time the identity of the informant. This ruling was not improper. See Thomas v. State, 85 Ga. App. 868 ( 70 S.E.2d 131).
The trial court did not err in denying the motion for new trial as amended.
Judgment affirmed. Gardner, P.J., and Carlisle, J., concur.