Opinion
47052.
SUBMITTED APRIL 5, 1972.
DECIDED APRIL 19, 1972.
Drug violation. Muscogee Superior Court. Before Judge Davis.
Kearns Bryan, Thomas R. Bryan, Jr., for appellant.
E. Mullins Whisnant, District Attorney, for appellee.
Where police officers, after observing the conduct of the defendant and his companion for a number of hours, searched the vehicle in which they were riding and found a quantity of marijuana, a part of which was in plain view, under the seat in which the defendant was riding, that evidence coupled with other circumstances was sufficient to authorize a verdict finding the defendant guilty of its possession, as against his contention that it might equally have been placed in the vehicle by the driver unknown to him.
SUBMITTED APRIL 5, 1972 — DECIDED APRIL 19, 1972.
Two police officers shadowed the defendant Moody and his companion Satterfield for approximately ten hours, observing the following facts: Satterfield was driving a small Datsun pickup truck, was armed with a pistol, and had rented a motel room. The two men came and went from this room together six or seven times. At one point a telephone call was placed from Columbus to Atlanta indicating that the men were waiting for someone. In the evening an automobile with two men came to the motel room, left on finding it empty, returned shortly thereafter and stopped in the rear of the parking area with lights off. In a few minutes Satterfield, with Moody in the passenger seat, drove up closely beside it. The officers were not in position to tell whether or not anything passed between the occupants. The cars then drove out of the lot. The Datsun truck was stopped at a traffic circle and as the defendant stepped out the police officer observed a plastic bag lying partly under his seat which appeared and on examination proved to be filled with marijuana. Two other bags were lying on the rear floorboard, approximating two and a half pounds or $800 worth of contraband. All of this evidence was admitted without objection. The jury returned a guilty verdict and Moody appeals.
The only enumeration of error argued by the defendant contends that the verdict, which is based on circumstantial evidence, is unsupported by a quantum of evidence sufficient to exclude every other reasonable hypothesis, and that, in view of Watson v. State, 93 Ga. App. 368 ( 91 S.E.2d 832) and similar cases holding that "where immediate and exclusive possession of an automobile, locker room, or other premises is shown, the inference is authorized that the owner of such property is the owner of what is contained therein," it must be held either that the marijuana belonged to the owner, Satterfield, or that it is impossible to tell whether it belonged to Satterfield or Moody, for which reason Moody's motion for a directed verdict of acquittal should have been granted.
Theoretically, of course, the marijuana could have belonged to either, neither, or both the occupants of the automobile. Brown v. State, 125 Ga. App. 300 (1) ( 187 S.E.2d 301). No evidence suggests any explanation whereby it could have been placed in the car without either Satterfield or Moody knowing of its presence. All of the evidence, however, including evidence that one of the bags was visible to a person entering the truck, suggests that the ownership was joint, taking into account the number of times the men had come and gone in the truck on the day in question. The inference of possession from ownership of the vehicle does not attach exclusively to Satterfield in view of Moody's continued presence with him. The amount of marijuana involved, its location loose on the floorboard, and the rendezvous with the other vehicle following the telephone call and itself immediately preceding the departure of the vehicle, strongly suggests, although it does not unequivocally establish, that the contraband had just changed hands, and this of course was the theory acted upon by the police who immediately stopped the car, after a surveillance of many hours. Our only question is whether the bare possibility that Satterfield could have come into possession of the drug and placed it under Moody's seat without Moody's knowledge is sufficient reason for reversing the jury verdict. "The rule as to the sufficiency of circumstantial evidence to support a conviction is that the evidence exclude every reasonable hypothesis except the guilt of the accused, not that it removes every possibility of his innocence. John v. State, 33 Ga. 257, 268; Farrar v. State, 110 Ga. 256 ( 34 S.E. 288); Williams v. State, 204 Ga. 837, 842 ( 51 S.E.2d 825); Graves v. State, 71 Ga. App. 96, 99 ( 30 S.E.2d 212)." Eason v. State, 217 Ga. 831, 840 ( 125 S.E.2d 488). Under the particular circumstances of this case the trial court properly refused to direct a verdict of acquittal.
The state having offered evidence that the defendant's companion had a pistol and the defendant's attorney having objected and moved for a mistrial, the trial court sustained the objection that "I can't see how this other person that was driving the truck being armed has anything to do with this trial," and cautioned the jury to ignore any reference to such testimony. If the appellant was not satisfied with the instructions given by the court he should have renewed his motion. This enumeration of error is without merit. McBride v. State, 119 Ga. App. 418 ( 167 S.E.2d 374).
Judgment affirmed. Eberhardt, P. J., and Clark, J., concur.