In this case, the appellant was convicted of violating the Georgia Controlled Substances Act because of marijuana found by the police in a residence which the appellant was occupying with a female.
Under Code 53-501, the husband is declared to be head of the household. Based on this, it has been held that when he and his wife reside together, there is a rebuttable presumption that contraband found in the house belongs to the husband. E.g., Jenkins v. State, 51 Ga. App. 95 (179 SE 597) (1935) and cits. Over the appellant's objection, the trial judge charged the jury that there is such a presumption. In addition, the judge failed to charge the jury that the presumption is rebuttable.
In this appeal, the appellant argues that the head-of-the-household statute is unconstitutional under Orr v. Orr, 440 U. S. 268 (99 SC 1102, 59 LE2d 306) (1979). Therefore, he argues that the foregoing presumption is also unconstitutional. See generally, County Court of Ulster County v. Allen, 442 U. S. 140 (99 SC 2213, 60 LE2d 777) (1979). In addition, he complains of the failure of the trial judge to instruct the jury that the presumption is rebuttable. See Sandstrom v. Montana, 442 U. S. 510 (99 SC 2450, 61 LE2d 39) (1979); County Court of Ulster County v. Allen, supra. (The appellant states in his appellate brief: "Although it was not -- established that the appellant was married or that the female on the premises was his wife, we will assume for the purpose of the constitutional issue that this was true.")
The state argues, among other things, that even if the trial judge's charge to the jury was error, it was harmless in view of the fact that the appellant admitted to the police that the marijuana belonged to him. This admission was received in evidence, and it was corroborated by other evidence that some of the marijuana was found in a jacket which the appellant was later seen wearing.
Williamson v. State, 248 Ga. 47, (1c) (1981). Thus, the fact that there was received in evidence an out-of-court admission by the appellant that the marijuana belonged to him cannot be said to render the trial judge's charge to the jury harmless error.
2. We also hold that a permissive, or rebuttable, presumption that contraband found in a house belongs to the husband by virtue of his statutory status as head of the household cannot withstand due-process scrutiny under County Court of Ulster County v. Allen, supra, and cits. In other words, the fact that the husband has been declared by statute to be the head of the household does not render it "more likely than not" that he is the possessor of contraband found therein. County Court of Ulster County v. Allen,supra, 442 U. S. at p. 165. 1
3. Having decided that the head-of-the-household statute's contraband presumption is unconstitutional under the due-process clause, we find it unnecessary to reach the broader question of whether the statute itself can withstand equal-protection scrutiny under Orr v. Orr, supra.
Hayes & Hammack, Arnold Hammack, for appellant.