Poythress v. State

20 S.E.2d 212, 67 Ga. App. 324, 1942 Ga. App. LEXIS 405

Opinion

Broyles, C. J.

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 pojnpbpdy whistling; they whisfled back, and the defendant’s S9P 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.