Summary
In Harper v. State, 85 Ga. App. 252, 255 (69 S.E.2d 102) it was held that even the presumption of law that whiskey found in the house belongs to the head of the house is not sufficient to support a verdict of guilty, where the defendant's occupancy of the premises is maintained by him and his family jointly with others.
Summary of this case from Russell v. StateOpinion
33801.
DECIDED JANUARY 22, 1952.
Violating liquor law; from Elbert Superior Court — Judge Edwards. August 18, 1951.
J. T. Sisk, for plaintiff in error.
Carey Skelton, Solicitor-General, contra.
1. Where liquor is found on premises occupied by the defendant, it is not sufficient to support a conviction if it affirmatively appears from the evidence that persons other than the defendant and members of his immediate family, of which he is the head, had equal opportunity with him to commit the crime.
2. A witness may be impeached by contradictory statements previously made by him as to matters relevant to his testimony, the effect of this evidence to be determined by the jury.
3. The presumption of law that whisky found in the home belongs to the head of the house is not sufficient to support a verdict of guilty, where the defendant's occupancy of the premises is maintained by him and his family jointly with others.
4. One of the two special assignments of error is considered with the general grounds, and the other one is not passed upon, since it is not likely to occur upon another trial.
DECIDED JANUARY 22, 1952.
The undisputed evidence discloses that the defendant lived in a five-room house located on a farm. His family, consisting of his wife and a 17-year-old stepson, lived with him. His mother, who owned the property, also lived in this house. The mother had a part of the land farmed in her own behalf and the defendant farmed other parts of the land. The mother hired one Columbus Self to work on the premises, and he received as payment therefor $1.50 per day and his board. He also occupied the house with the mother, the defendant, and the family of the latter. There was a tenant house on the premises, which was occupied by a tenant of the mother. On February 8, 1951, the officers searched these premises and found three half-gallon jars of un-tax-paid whisky, one jar in a closet of the hall of the house, and two jars hidden in the corn in the corn crib, to which all persons on the premises had access. The mother, the stepson, and the hired man were at home when the search was made. After the whisky was found, but before the officers left, the defendant came home. When the whisky located in the house was found, the hired man stated that it was his whisky and that he had put it there. A large quantity of fruit jars, some containing the odor of whisky was found in the house, the yard, and the adjacent field. Other officers had on several occasions, over a period of years, searched the same premises, and had on each occasion found a large quantity of fruit jars, some containing the odor of whisky. Some of these jars on the previous occasions may have been the same as some of those found in this case. The only search revealing whisky was the one now under consideration.
Although in dispute, the evidence authorized the jury to find that, when the officers found the whisky in the house, the hired man stated that, if any other whisky was found on the premises, he knew nothing of it. The officer then proceeded to the corn crib and found the whisky that was concealed there. The hired man again stated that he had no knowledge of it. However, when the defendant came home, he said in the presence of the officers to the hired man, "If there is any liquor here it is yours, Columbus, and you tell the officers it is yours." Whereupon Self replied: "The liquor is mine. Any liquor here is mine." The hired man testified as a witness for the defendant that all the whisky was his and detailed the circumstances under which he procured and concealed it.
Upon conviction the defendant filed a motion for a new trial, which was later amended by adding two special grounds. The judgment of the trial court overruling this motion is assigned as error.
1. A careful examination of the evidence discloses that the mother of the defendant and Columbus Self had equal opportunity with the defendant to possess the liquor found in the hallway of the house; also, that the mother of the defendant, Columbus Self, and the tenant of the defendant's mother had equal opportunity with the defendant to possess the liquor found in the corn crib.
2. The jury was authorized to disregard the testimony of the hired man to the effect that all the liquor found on the premises was his liquor, and that the defendant was in no way connected with it, because of a prior contradictory statement he had made to the officers. See Code, § 38-1803. When his testimony is thus disregarded, however, he is not eliminated as one of the persons who could have committed the crime merely because the jury elected to disregard his testimony that he was the one who owned it. So treated, it must be placed in the same category as if he had not testified at all. The other persons having equal opportunity with the defendant to commit the crime did not testify. The evidence therefore is not sufficient to exclude every reasonable hypothesis save that of the guilt of the accused.
3. As between husband and wife, there is a presumption of law that whisky found in the home belongs to the husband, who is the head of the house. Morris v. State, 51 Ga. App. 145 ( 179 S.E. 822); Acker v. State, 78 Ga. App. 819 (e) ( 52 S.E.2d 559); Gilder v. State, 52 Ga. App. 252 ( 183 S.E. 95). But such a presumption cannot be broadened to include all relatives who may be living in the same house with the defendant, and this is all the more true where the relative here, an adult woman who is the defendant's mother, is not living in her son's home but, on the contrary, the son and his family are living with the mother, who owns the home and farms a part of the adjoining land in her own right, employing a laborer for this purpose. The facts here are such that others than the defendant had equal opportunity to commit the offense. Summerville v. State, 68 Ga. App. 13 ( 21 S.E.2d 909); Cummings v. State, 25 Ga. App. 427 ( 103 S.E. 687); Wright v. State, 48 Ga. App. 302 ( 172 S.E. 687); Kennedy v. State, 23 Ga. App. 141 ( 97 S.E. 894); Palmer v. State, 76 Ga. App. 881 ( 47 S.E.2d 604); Roper v. State, 67 Ga. App. 272 ( 19 S.E.2d 746); Gray v. State, 51 Ga. App. 458 ( 180 S.E. 758); Graham v. State, 51 Ga. App. 93 ( 179 S.E. 637); Jelks v. State, 36 Ga. App. 638 ( 137 S.E. 840).
4. One of the two special assignments of error is considered with the general grounds, and the other is not passed upon, since it is not likely to occur in another trial.
The trial court erred in overruling the motion for a new trial.
Judgment reversed. Gardner, J., concurs. MacIntyre, P. J., concurs specially.
Where the defendant and his family, over whom he has the right of control, reside together, the legal presumption is that the house and the household effects, including intoxicating liquors, belong to him as head of the family. Isom v. State, 32 Ga. App. 75 ( 122 S.E. 722). This presumption is, of course, rebuttable. In this case, however, Columbus Self, a person other than the defendant or a member of the defendant's family, lived in the defendant's house; and there was no evidence that Self did not have control or possession of such intoxicating liquors as were discovered in the defendant's house, except the testimony of witnesses as to what Self, not the defendant, had told them; and, while this testimony, under the facts of this case, might have been used for the purpose of impeaching the witness Self, it was pure hearsay as far as the defendant's possession of the intoxicating liquors was concerned, and was of no probative value. The State, I think, for that reason did not carry the burden of proving beyond a reasonable doubt that the defendant was in possession of the prohibited liquors.