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Violating liquor law; from Crawford Superior Court-- Judge Mallory C. Atkinson. July 5, 1951.
1. A conviction depending entirely upon circumstantial evidence must negative every reasonable hypothesis save that of the guilt of the accused. Where the conviction depends entirely upon the circumstance of liquor being found on premises belonging to or under the control of the defendant, and where such liquor is located by a public path, in a public part of a building, in an uninclosed field by a traveled road or alley, or other circumstances appear not negativing the possibility that another than the defendant might have had opportunity to conceal the liquor in the place where it was found, a conviction is unauthorized. 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).
2. Where, as here, it appears that the defendant is in sole control of the premises and the public does not have access thereto, where the only tracks from the cache of liquor lead to the defendant's home and fresh tracks show recent travel from the house to the liquor, and where there are no other residents in the vicinity and the cache is not near any road, trail, alley, or path used by others than the defendant and his household, the evidence, though circumstantial, is sufficient to negative every other reasonable hypothesis save that of the guilt of the accused. Henderson v. State, 45 Ga. App. 235 (164 S. E. 70); Johnson v. State, 41 Ga. App. 327 (152 S. E. 920); Whittemore v. State, 36 Ga. App. 299 (136 S. E. 806); Aikens v. State, 57 Ga. App. 535 (196 S. E. 263); Lamb v. State, 36 Ga. App. 306 (136 S. E. 331); Hale v. State, 50 Ga. App. 99 (176 S. E. 919); Wynn v. State, 38 Ga. App. 262 (143 S. E. 599); Cook v. State, 33 Ga. App. 571 (127 S. E. 156). Where, upon the approach of the arresting officers, an attempt is made to dispose of liquid identified by the witnesses by a sense of smell as being whisky or whisky poured into water, this is a circumstance which may also be considered. McQuire v. State, 82 Ga. App. 132, (60 S. E. 2d, 526). The verdict here was supported by the evidence.
Lewis Corbin was accused, tried, and convicted in the Superior Court of Crawford County of possessing illegal whisky. Two witnesses for the State, a State revenue agent and the county sheriff, testified in substance that, as they entered the defendant's home, his wife, who was in the kitchen, threw out on the ground a dishpan full of liquid which had a strong odor of whisky and which, from the odor, appeared to be water with a large proportion of whisky therein. There was also a strong odor of whisky in the dishpan. Fresh tracks of a man's shoes led from the house down a path to the edge of a cotton patch behind the house. At this point the fresh tracks turned off the path, which was unused beyond that point, and led about 25 steps to a hole covered with dead grass, in which were two gallon jars containing non-tax-paid whisky, this point being about 75 yards from the house. A five-gallon glass jug with a strong odor of whisky was found in a haystack near this cache. Several other jugs and about 20 bottles were found in the defendant's back yard, most of them with an odor of whisky. No liquor was found in the house.
The nearest occupied house to the defendant's residence is located about 400 yards across a highway and beyond a railroad. Its occupant and the defendant rent adjoining lands from the landlord and have the joint use of a barn, located about 150 to 200 yards beyond the defendant's house and beyond the cotton patch. The liquor was found on land rented by the defendant.
W. B. Mitchell, Alvin B. Mitchell, for plaintiff in error.
Saturday May 23 05:19 EDT

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