The trial court erred in denying the motion for a new trial, as the State failed to submit evidence sufficient to negative every reasonable hypothesis save that of the guilt of the accused.
Willie Lee Moore was convicted in the City Court of Macon on an accusation that he did unlawfully have, control, store, conceal, possess and have in his possession non-tax-paid alcoholic liquors, whisky, rum and gin. The defendant's motion for a new trial on the general grounds only was denied. It is on this judgment that the defendant assigns error here.
Deputy Sheriff Stokes testified that he and other officers found eight gallons of "moonshine"; that he found tracks going from the house of the defendant to the lumber pile where the whisky was found; that the defendant lived in one unit of a four-unit apartment house; that there were other apartment houses in the area; that eight gallons of whisky were found on what the officer testified was the defendant's premises and that five gallons were found on property which he felt was not the defendant's premises; that anyone could walk anywhere in the area behind the defendant's apartment; that the witness did not see the defendant with any whisky in his hand nor did he see the defendant go to or around the lumber pile where the whisky was found. Another officer testified approximately to the same effect. He testified: "Anyone could walk around the area where the lumber pile is located . . . I suppose they [the tracks] could have been made by someone else." There is testimony that there was a general garbage can in the same vicinity used by all the other people in the apartment. All the officers testified that they did not know for sure where the defendant's premises started and where they stopped. The defendant in his statement denied ownership of the whisky.
The State failed to identify the tracks as those of the defendant. See Patton v. State, 117 Ga. 230
(43 S. E. 533) and Cummings v. State, 110 Ga. 293
(35 S. E. 117). In our opinion the evidence, wholly circumstantial, did not negative every reasonable hypothesis save that of the guilt of the accused. See Corbin v. State, 84 Ga. App. 763
(67 S. E. 2d 478). See also Wilson v. State, 32 Ga. App. 427
(123 S. E. 623); Kinsey v. State, 40 Ga. App. 707
(151 S. E. 394) and Ralston v. State, 66 Ga. App. 62
(17 S. E. 2d 81).
The trial court erred in overruling the motion for a new trial.
Judgment reversed. Townsend and Carlisle, JJ., concur.