Opinion
36241.
DECIDED JUNE 12, 1956.
Beer violation; illegal possession. Before Judge Stark. Jefferson City Court. March 24, 1956.
Jack S. Davidson, H. W. Davis, for plaintiff in error.
The evidence upon which this conviction was procured being purely circumstantial, and failing to exclude every other reasonable hypothesis save that of the guilt of the accused, is insufficient to support the verdict.
DECIDED JUNE 12, 1956.
Allen Martin was tried and convicted, in the City Court of Jefferson, of having and possessing beer for the purpose of sale without a permit. Upon the trial the evidence most favorable to support the verdict was that police officers raided the defendant's home; that he made no attempt to turn them away or conceal anything from them; that 4 or 5 men were in the home of the defendant drinking beer; that there were 2 large refrigerators; that there were 72 cans of cold beer in the ice box and the remainder in cartons — a total of 284 cans in all; and that there were 100 or 200 empty cans showing no visible signs of age in a container in the back yard. None of the persons present in the house at the time of the raid were called as witnesses. None was seen to purchase beer. The house was located about 100 yards from the highway and its approaches were well traveled. One officer testified on cross-examination: "I wouldn't swear to the court and jury that this man had this beer for sale. I wouldn't go so far as to say that. I don't know whether Mr. Martin there and his friends were just having a little party. All I know is that there was quite a few empty beer cans down there." The other witness for the State testified on cross-examination: "There is nothing uncommon about the driveway being traveled. Mr. Martin and his family live in this house. . . I did not see him sell any beer, and I wouldn't swear to the jury here that he had this beer for the purpose of sale. . . I do not know whether or not they were just having a little party. I would not say anything about that. I would say Mr. Martin and them didn't try to hide anything from us and didn't see anybody buy any beer." The defendant made a statement, in which he said he did not have any beer for sale; that he and the persons on the premises, who were friends of his, were having a party and they brought some beer down there.
Upon conviction the defendant filed a motion for new trial on the general grounds, which was later amended by the addition of one special ground. The overruling of this motion is assigned as error.
It was held in Easterwood v. State, 83 Ga. App. 400 ( 63 S.E.2d 689), that the presence of 175 cans of beer on the premises, 103 being refrigerated, together with about 500 empty cans in the vicinity, did not constitute circumstantial evidence of possession of beer for the purpose of sale sufficient to support a conviction. The evidence in the present case shows a total of 284 cans of beer, 72 being refrigerated, and between 100 and 200 empty cans on the premises. The circumstances of the case are as consistent with the defendant's explanation that he and his friends were having a party as with the State's theory that he was selling beer without a permit. Mere possession of beer is legal, and mere possession, where other elements from which an inference of intent to make an illegal sale are absent, is insufficient to convict. In Cain v. Mayor c. of Cordele, 8 Ga. App. 433, 435 ( 69 S.E. 578), the evidence concerned a 100-pint drum of liquor, as to which the court held: "The mere fact that he [the defendant] had possession of the liquor would not raise any presumption that he intended to violate the law by selling it, or to keep it on hand for the purpose of illegal sale. It is true the amount of liquor was large, but this evidence alone would only raise a suspicion that the defendant did not want it exclusively for his own use, and this suspicion would not necessarily embrace a violation of law." See also Fain v. City of Atlanta, 8 Ga. App. 96 ( 68 S.E. 619); Smith v. City of Atlanta, 12 Ga. App. 816 ( 78 S.E. 472).
The evidence was insufficient to sustain the conviction, and the trial court erred in denying the motion for a new trial. The special ground of the amended motion is without merit.
Judgment reversed. Gardner, P. J., and Carlisle, J., concur.