Easterwood v. State

63 S.E.2d 689, 83 Ga. App. 400, 1951 Ga. App. LEXIS 874

• Court: Court of Appeals of Georgia
• Decided: March 2, 1951
• Docket: 33302
• Status: Published

Opinions

Gardner, J.

' The evidence of the State shows that the officers had a search warrant and that they broke into the locked house of the defendant.

There was evidence that approximately 500 empty beer cans were found behind the defendant’s house, about 20 or 30 yards from there, and that there were two vacant houses directly behind his house. There was no evidence as to whether the beer cans appeared to be recently placed there, or to show whether they might have represented an accumulation of years. Also, the testimony as to a number of beer cans beside the public road for a quarter of a mile beyond the defendant’s house did not indicate in any way whether they were connected with the house, how old they were, or how long they had been lying beside the road. The empty cans alone, therefore, were those back of the house or those lying along a public road and in the ditches, with no evidence as to how long they had been lying there or that the defendant was responsible for them, and constitute no evidence of guilt so far as the charge of selling without a license is concerned.

There was no serious attempt to identify any purchasers of the beer the defendant was accused of selling. The witness testified, as to certain persons, “I don’t know that the people on the outside had been in the house.” He further stated: “In passing by this house I have observed cars or traffic in and out of the yard there. On one particular occasion, a Saturday night'or two before this was raided, we noticed there were four different cars in the yard. They were all there at the same time. I did not .notice the people in the cars. On other occasions I saw cars parked there. That was before the beer was caught.” In this day and time it is not unusual to see four cars parked at a house at one time, and consequently the evidence as to traffic seems to fall short, both as to the number of persons or cars involved, and the number of times they were noticed, as proof that any unusual number of people were in the habit of going to the premises in question.

This leaves, as the only evidence, 103 cans of iced beer found in the home refrigerator, and three cases found in a closet. The defendant explained these by saying that his wife went to Rome and bought the beer in order to have it for a birthday party she was giving the following Sunday.

In Buchanan v. State, 77 Ga. App. 435 (49 S. E. 2d, 157), relied on by the State, the evidence was: that 72 cases of beer were found on the defendant’s back porch; that over a period of two years large quantities of beer had been kept there and large quantities were found iced on the back porch, with several cars parked around the house and the occupants thereof going into the house and coming out with paper sacks; that the defendant had several times loaded his car with beer and driven off, and had several times loaded his. brother’s automobile with beer and driven off. This evidence, although circumstantial, was not only stronger but possessed a continuity in time which indicated the general design of action and negatived with possible explanation that the beer had been bought for some particular occasion.

In Howard v. State, 77 Ga. App. 712 (49 S. E. 2d, 684), another case relied upon by the State, the evidence also affirmatively showed the habit of keeping excessive quantities of beer, as well as iced tubs of beer, on the premises over a two-year period. This is very different from finding 7 cases of beer, mostly in a home refrigerator, on one occasion only.

This case is much closer on its facts to Fain v. City of Atlanta, 8 Ga. App. 96 (68 S. E. 619), where it was held that “mere possession of 3 gallons of corn whisky, in half-pint flasks kept in the owner’s dwelling, without any evidence of a sale or of an attempted sale on the part of the owner, is not such a circumstance as will authorize the conclusion, based upon moral and legal certainty that such liquor was kept for the purpose of sale.” Mere possession of liquor in itself is not ordinarily sufficient to convict of the offense of offering liquor for sale or selling the same. See Cain v. Mayor & Council of Cordele, 8 Ga. App. 433, (69 S. E. 578), and Smith v. City of Atlanta, 12 Ga. App. 816 (78 S. E. 472).

The Code (Ann. Supp.), § 58-726 (Ga. L., 1937, pp. 148, 152), makes it a misdemeanor to do any one of three things: to sell beer, to offer it for sale, or to possess it for the purpose of sale, without a license. There is no evidence in the instant case that the defendant sold the beer, or that he offered it for sale. Possession is proved. But the possession must be for the purpose of sale, and mere evidence of possession can not be relied upon to show that the purpose of the possession was to sell the same, unless it is under circumstances which negative every other reasonable hypothesis. We do not think it an unreasonable hypothesis that, as the defendant stated, he had bought the seven cases of beer for the purpose of having a birthday party the following weekend. The evidence is insufficient to support the verdict.

Pursuant to the act of the General Assembly, approved March 8, 1945 (Ga. L. 1945, p. 232), requiring that the full court consider any case in which one of the Judges of a division may dissent, and there being a dissent, this case was considered and decided by the court as a whole, and after consideration of the motion the judgment is concurred in by a majority of the six Judges of this court, and the judgment of the trial court is reversed.

Judgment reversed.

Sutton, C. J., Felton, Townsend, and Worrill, JJ., concur. MacIntyre, P. J., dissents.