Opinion
29524.
DECIDED MAY 7, 1942.
Manufacturing whisky; from Effingham superior court — Judge Evans. December 3, 1941.
Walton Usher, Clarence T. Guyton, for plaintiff in error.
Fred T. Lanier, solicitor-general, contra.
The evidence was insufficient to authorize a conviction of manufacturing whisky. (MacINTYRE, J., dissents.)
DECIDED MAY 7, 1942.
The defendant was convicted of the offense of manufacturing whisky. The evidence disclosed that he was approaching a whisky still in the daytime, but that before he reached it the officers called to him and he ran and got away. As he ran he whistled and "hollered." Soon afterwards the officers heard somebody whistling; they whistled back, and the defendant's son approached the still and was arrested. The still was about a mile from the defendant's home and was not on his land. The State introduced documentary evidence showing that the defendant had previously been twice convicted, once for possessing whisky and once for transporting whisky. In the defendant's statement to the jury he denied knowing anything about the still and said that he and his son were walking through the woods looking for lost hogs. Of course the jury had the right to reject his statement. However, the evidence was insufficient to authorize his conviction. In Griffin v. State, 2 Ga. App. 534 (2) ( 58 S.E. 781), this court said: "Neither presence nor flight, nor both together, without more, is conclusive of guilt." See also Foster v. State, 37 Ga. App. 498 ( 140 S.E. 775). The court erred in overruling the general grounds of the motion for new trial.
Judgment reversed. Gardner, J., concurs. MacIntyre, J., dissents.