1. The gravamen of the offense defined in Code 58-209 being that of knowingly permitting or allowing anyone to have, possess, or locate on the premises of the defendant any apparatus for the distilling or manufacturing of prohibited liquors, it is error for the trial court to charge in substance that it is a violation of the law for anyone to have in his possession any apparatus or parts of apparatus for the manufacture of liquor, and to further charge in substance that the defendant would he guilty if he lived on premises where such apparatus was found. where, as here, the evidence does not demand a finding that the defendant knew of the existence of the apparatus on the premises, nor does it demand a finding that the premises were those of the defendant or that he was in possession thereof, his sole defense, which was supported by some evidence, being that he did not own the premises and was not in possession thereof. The charge complained of excluded this defense from the consideration of the jury.
2. Evidence tending to show the commission of a crime and tending to connect the defendant therewith, although remote, will not be excluded because of its prejudicial effect, but such evidence will be admitted and its weight shall be for the determination of the jury.
3. It is never error to fail to direct a verdict.
4. Error, to be reversible, must be harmful, and where a charge, although error, is favorable to the defendant, it is not such as to bring about a reversal of the case.
Amos McCall was convicted in the City Court of LaGrange of possessing on his premises apparatus for the distilling and manufacturing of spirituous liquors. The evidence showed that title to the property was in the defendant's wife, and that they, together with a grown stepson, lived on the premises. The defendant arrived on the premises with a hundred-pound sack of sugar. At the request of the arresting officers he furnished them with a key to the smokehouse, in the loft of which they found a "worm" used in distilling liquor, and some sheet aluminum and poplar boards.
The defendant, following conviction, filed a motion for new trial on the general grounds, which he later amended by adding 14 special grounds. The overruling of this motion is assigned as error.
(After stating the foregoing facts.) 1. Special ground 13 of the amended motion for new trial assigns error on the charge of the court as follows: "I charge you, gentlemen, it is a violation of the law for anyone to have in his possession any part of distilling apparatus. You look to the evidence and see what the State has shown to you, what they found on the premises where this defendant lived, no matter whether complete or not, whatever it was, if it could be used together with other things for the manufacture of intoxicating liquor, then he would be guilty. He is not permitted to possess any of the apparatus for the manufacture of such intoxicating beverages." In special ground 10, error is assigned on the following charge: "I charge you, gentlemen of the jury, that it is a violation of the law to manufacture any whisky in this county, and it is a violation of the law for anyone to have in his possession any apparatus or parts of apparatus for the manufacture of liquor."
In considering these portions of the charge, it is noted that Code 58-209 provides: "It shall be unlawful for any corporation, firm or individual to knowingly permit or allow any one to have or possess or locate on his premises any apparatus for the distilling or manufacturing of the liquors and beverages specified in section 58-201. When any such apparatus is found or discovered upon said premises the same shall be prima facie evidence that the person in actual possession had knowledge of the existence of the same . . . the burden of proof in all cases being upon the person in actual possession to show the want of knowledge of the existence of such apparatus on his premises." The gravamen of this offense is knowingly permitting or allowing anyone to have, possess, or locate any apparatus for the distilling or manufacturing of prohibited liquors on the premises of the defendant. It is not essential to show that the defendant has fee-simple title to the premises on which the apparatus is found, but it is essential to show that such premises are in his possession in the sense that they are under his custody and control. Sims v. State, 84 Ga. App. 753 (1)
(67 S. E. 2d, 254), and cases cited; Nally v. State, 71 Ga. App. 742 (1)
(32 S. E. 2d, 204). The undisputed evidence here showed that the premises belonged to the defendant's wife and she had legal title thereto; that the defendant and a grown stepson lived thereon; and that the defendant possessed a key to the smokehouse in the loft of which the apparatus for distilling liquor was discovered. This alone did not demand a verdict of guilty on the theory that the defendant, rather than his wife or stepson, possessed and controlled the premises. He therefore had a right to rely upon his sole defense, which was that the premises were not in his custody or control, but in that of his wife. The charge that, if the jury should find from the evidence that distilling apparatus was found on the premises where the defendant lived, he would be guilty of the offense, and that such possession would be his possession, was error as depriving him of his sole defense, his contention being that, although he lived on the premises, they were not his, and were not in his custody Or control. And while he did possess a key to the building in which the distilling apparatus was found, this alone, under the circumstances, was not conclusive, it not being shown that the owner and others living on the premises did not have equal access to it.
It was also error to charge that "it is a violation of law for anyone to have in his possession any apparatus" for manufacturing liquor, since, under this statute, it is not the mere possession, but possession on the land of the owner or person having control thereof, which is forbidden. Day v. State, 79 Ga. App. 662 (54 S. E. 2d, 668). While this portion of the charge was later corrected, the part which indicated that the defendant would be guilty if a distilling apparatus was found on properly where he lived, regardless of whether he had custody or control thereof, was error requiring reversal.
2. Special grounds 1 through 7 complain of the admission of evidence that the arresting officers found sugar, jugs, sheet aluminum and poplar boards, all of which they identified as materials commonly used in setting up and operating distilling apparatus. The defendant brought the sugar onto the premises while the witnesses were there. This evidence was admissible for what light it might throw on the question of whether the "worm" found in the smokehouse was known by the defendant to be there, sugar and jugs being commodities used in the manufacture and handling of liquor. Also, there is evidence that aluminum and poplar boards are used in connection wish the construction of a distilling apparatus. While this evidence is of slight probative value, it was properly admitted. Its weight is a matter for the determination of the jury.
4. The remaining special grounds assign error on the contentions of the State, the charging of Code 58-209, and an excerpt from the charge, stating that "the main statute is against the owner of the premises." By this was meant, as must have been apparent to the jury, that the statute is directed primarily against the owner or person in pos.session of premises upon which distilling apparatus is found, and, although in aptly worded, this portion of the charge was favorable to the defendant rather than otherwise. Special grounds 9, 11, 12, and 14 are without merit. The general grounds are not here passed upon, as this case is to be tried again.
Judgment reversed. Gardner, P.J., and Carlisle, J., concur.