Freeman v. State

67 S.E.2d 314, 84 Ga. App. 757, 1951 Ga. App. LEXIS 786

• Court: Court of Appeals of Georgia
• Decided: October 23, 1951
• Docket: 33712
• Status: Published

Opinions

Townsend, J.

(After stating the foregoing facts.) It does not appear that the three pieces of evidence upon which the State relies are sufficient, either separately or in connection with each other, to exclude every reasonable hypothesis save that of the guilt of the accused. As to the first, the police officers saw two men come out of the house with bottles in their possession, and saw the defendant talking “to some of them”; but they testified that they did not know what was in the bottles, and in any event they did not testify that the defendant, who was on the porch, gave them the bottles. As to the second, the statement, “We will have some tomorrow,” without more, is not a sufficient basis for the assumption that the thing referred to was - necessarily moonshine whisky. As to the third, whisky found by a trail or ditch or in bushes at some distance from the house, and especially when on property not under the control of the defendant, has frequently been held insufficient as the foundation of a conviction. Serritt v. State, 44 Ga. App. 269 (161 S. E. 279); Weehunt v. State, 80 Ga. App. 368 (56 S. E. 2d, 148); Gray v. State, 51 Ga. App. 458 (180 S. E. 758); Wright v. State, 48 Ga. App. 302 (172 S. E. 687); Jackson v. State, 36 Ga. App. 211 (136 S. E. 286); Roper v. State, 67 Ga. App. 272 (19 S. E. 2d, 746); Summerville v. State, 68 Ga. App. 13 (21 S. E. 2d, 909). In Young v. State, 36 Ga. App. 273 (136 S. E. 556), cited by the solicitor-general, whisky was found in the room rented by the defendant. In Warren v. State, 53 Ga. App. 221 (185 S. E. 385), where one occupied a-house jointly with his daughter and son-in-law, and the two latter testified that whisky found in the house did not belong to them, the conviction was authorized. However, in Toney v. State, 30 Ga. App. 61 (116 S. E. 550), where whisky was found in a house occupied by the defendant, his daughter, and son-in-law, and neither testified that the whisky did not belong to them, the conviction was unauthorized. In the present case, the son-in-law testified to this effect, but the daughter did not. Further, it was shown that the whisky was found some distance from the house near a trail, other houses being in close proximity, and the possibility that one of these persons might have placed the whisky in the bushes was not negatived.

As the evidence is insufficient and the conviction unauthorized, it is unnecessary to obtain additional record for the purpose of showing that the defendant was not sentenced under the defective count of the indictment.

The trial court erred in overruling the motion for a new trial.

Judgment reversed.

Gardner, J., concurs. MacIntyre, P. J., concurs specially.