Court of Appeals of GeorgiaMay 13, 1954
90 Ga. App. 183 (Ga. Ct. App. 1954)
90 Ga. App. 18382 S.E.2d 258


DECIDED MAY 13, 1954.

Violating liquor law. Before Judge Craigmiles. Thomasville City Court. February 5, 1954.

Titus, Altman Johnson, for plaintiff in error.

Marcus B. Calhoun, Solicitor, contra.

The evidence is amply sufficient to sustain the jury's verdict of guilty.

DECIDED MAY 13, 1954.

O. Lee Walker (hereinafter called the defendant) was convicted on an indictment which charged him in count one with having in his possession, custody, and control certain non-tax-paid distilled spirits, alcohol, whisky, and liquor. Count two charged him with a misdemeanor, in that he had in his possession, custody, and control certain spirituous, alcoholic, and intoxicating liquors, to wit, whisky, in a so-called "dry" county. He moved for a new trial on the general grounds only. His motion was denied, and the case is before this court for review on the general grounds only.

The evidence, briefly but substantially, shows the following: Sheriff Law testified in part as follows: "Out in his (defendant's) yard in the back a little trail leads out from there, out into the woods, and this whisky was found right off out to one side of this little trail — well, we found several holes up there where it had been with trash in it and these two jugs we found was in a hole with trash just raked over them, they were buried. There is an old house close by the defendant's house where he used to live and we found a couple of empty jugs in that house. There is a little trail that leads out from his yard to approximately where the whisky was."

On cross-examination, the same witness testified that the whisky was found 100 yards from the home of the defendant; that he did not know to whom the land belonged, and that there was another house in the vicinity.

Isaac Holland, State revenue agent, testified that he found the whisky back of the defendant's house; that there was no residence closer to the whisky than the defendant's residence, and no road leading from any other residence back to where the whisky was found; that he did not see any paths leading from any place other than the defendant's place; that the defendant's house was the only house in use in the vicinity.

C. A. Rehberg, deputy sheriff, testified that he was present when the raid was made; that he did not actually find the whisky himself.

The defendant introduced one witness, Braxton Gibson, who testified that the defendant lived on the land of the witness; that the whisky was found on the land of one Ted Liefeld; that the land line between the property of the witness and that of Liefeld "is just a few yards beyond O. Lee's." He further testified that another house was as close to the place where the whisky was found as was the house of the defendant.

The defendant made a statement denying that the whisky belonged to him.

Counsel for the defendant argue that the evidence offered by the State was entirely circumstantial, and failed to exclude every reasonable hypothesis save that of the defendant's guilt, and cite in support of this contention Mullins v. State, 24 Ga. App. 357 ( 100 S.E. 755), and Gray v. State, 51 Ga. App. 458 ( 180 S.E. 758). The facts in these cases are not on all fours with the facts in the instant case and are not authority for a reversal of this case. Counsel also cite Pruett v. State, 36 Ga. App. 625 ( 137 S.E. 788). The facts in that case are not similar to the facts in the instant case. In fact, in all three of the cases cited by counsel for the defendant, we find no mention of a path leading directly from the home of the defendants in those cases to the place where the whisky was found. There is such evidence in the instant case, which takes it out of the field of circumstantial evidence.

We think that Aikens v. State, 57 Ga. App. 535 ( 196 S.E. 263), shows facts almost exactly like those in the instant case. In that case, as here, the only path to the whisky led from the defendant's place of business or home. In that case a witness testified: "I don't know whose land the whisky was found on. . ." The defendant in that case was convicted. In the instant case there was also testimony that the officers did not know on whose place the whisky was found. See also Whittemore v. State, 36 Ga. App. 299 ( 136 S.E. 806), and Craig v. State, 41 Ga. App. 225 ( 152 S.E. 594). In Corbin v. State, 84 Ga. App. 763 ( 67 S.E.2d 478) this court said: "A conviction depending entirely upon circumstantial evidence must negative every reasonable hypothesis save that of the guilt of the accused. Where the conviction depends entirely upon the circumstance of liquor being found on premises belonging to or under the control of the defendant, and where such liquor is located by a public path, in a public part of a building, in an uninclosed field by a traveled road or alley, or other circumstances appear not negativing the possibility that another than the defendant might have had opportunity to conceal the liquor in the place where it was found, a conviction is unauthorized."

It will be noted that this headnote uses the words "public path," while the facts in the instant case show that the path was a private path. Moreover, headnote 2 of the Corbin case reads: "Where, as here, it appears that the defendant is in sole control of the premises and the public does not have access thereto, where the only tracks from the cache of liquor lead to the defendant's home and fresh tracks show recent travel from the house to the liquor, and where there are no other residents in the vicinity and the cache is not near any road, trail, alley, or path used by others than the defendant and his household, the evidence, though circumstantial, is sufficient to negative every other reasonable hypothesis save that of the guilt of the accused. Henderson v. State, 45 Ga. App. 235 ( 164 S.E. 70); Johnson v. State, 41 Ga. App. 327 ( 152 S.E. 920); Whittemore v. State, 36 Ga. App. 299 ( 136 S.E. 806); Aikens v. State, 57 Ga. App. 535 ( 196 S.E. 263); Lamb v. State, 36 Ga. App. 306 ( 136 S.E. 331); Hale v. State, 50 Ga. App. 99 ( 176 S.E. 919); Wynn v. State, 38 Ga. App. 262 ( 143 S.E. 599); Cook v. State, 33 Ga. App. 571 ( 127 S.E. 156)."

The testimony of Sheriff Law puts the instant case on all fours with the testimony in the case immediately above quoted.

The evidence, while partly circumstantial, was amply sufficient to exclude every other reasonable hypothesis save that of the guilt of the accused.

The trial court did not err in denying the motion for a new trial.

Judgment affirmed. Townsend and Carlisle, JJ., concur.