Will Kelly was indicted by a grand jury for a misdemeanor. The indictment, omitting the formal parts, charged that on July 4, 1954, he did "unlawfully control and possess certain spirituous, vinous, malted and fermented liquors and alcoholic compound and malt and liquor." It was charged that the liquor involved had no State revenue stamps affixed. He entered a plea of not guilty, and on the trial was convicted and sentenced. He filed his motion for new trial on the usual statutory grounds and thereafter added two special grounds.
From the nature of the case we deem it expedient to quote the evidence verbatim from the record. The evidence at the trial was not reported, but was agreed upon by counsel for the defendant and for the State. We mention this because in the argument of counsel for both parties reference is made to this fact. The evidence is as follows: Ernest Mason testified for the State: "that he was an investigator for the Alcohol Tax Division of the State Department of Revenue; that on July 4, 1954, he had occasion to go to the place of business of Will Kelly, which is located in Putnam County, Georgia; that he went to the place of business of Will Kelly and opened the front door and went into the place of business, and found a large room with two tables in the room and several colored folks sitting around both tables when they arrived; that he saw the defendant sitting at one table drinking a can of beer; that there were several empty soft-drink bottles around on the floor and several empty glasses on both tables, which smelled of liquor; that, on the table other than the one at which the defendant was sitting, there was a half-gallon bottle with some 'white liquor' in it and no State revenue stamps on the container; that as he entered the room a colored man, sitting at the table other than the one at which the defendant was sitting, took the bottle which contained the non-tax-paid 'white liquor' and put the said bottle under the table at which he was sitting; that witness then undertook to describe the room in which the defendant and the other people were sitting; that his description was that this room was rather large and contained two tables. He stated further that on several occasions he had been out to check this defendant's place of business; that he found that the defendant's place of business was only opened Friday evening, Saturday, and Sunday. He also stated that he found that the defendant sold sandwiches, which were eaten in this room where the two tables were located; that the defendant was operating the place of business at the time of this search; and that he had been there before and Will Kelly was in charge of this business.
"On re-direct examination, the solicitor-general undertook to inquire of this witness the exact location of the place of business of Will Kelly, the defendant. The witness testified that the place of business was located in Putnam County, Georgia and that the same was under exclusive control of the defendant; and that the same was opened for business only on Fridays, Saturdays, and Sundays; that the place of business sold sandwiches and other things to eat. He re-described the building in which the defendant's place of business was operated. And it was on this examination the same as on direct, examination. The witness then stated in response to a question of the solicitor-general, that he had been to the defendant's place of business several times previously and found the defendant was in charge of this place of business on each occasion; that he had made cases against this defendant on nineteen separate occasions for liquor violation. The defense counsel objected to this testimony on the grounds that the same was prejudicial and placed the defendant's character in evidence, when the defendant had offered no evidence of character on his part, and at this time the defendant's counsel also moved for a mistrial on the grounds that the above evidence was so prejudicial that it would be impossible to erase the same from the minds of the jury and that they would be unable to render a fair and impartial verdict in this case. The court ruled the evidence out and instructed the jury to disregard the same, and allowed the case to continue. The defense counsel made timely objections to the overruling of his motion for a mistrial.
"On re-cross examination, this witness testified that he could not possibly state to this jury the chemical contents of the bottle which they found in the place of business of the defendant, and which was placed under the second table by a third party. But he continued to state that in his opinion it was 'white liquor'. He stated that the defendant operated the place of business and that there was always a large crowd out there on the weekends; that they served sandwiches in the room in which they found the liquor. And the witness continued by saying that he was thoroughly familiar with the place and had been there at least nineteen times. At this point the defense again objected to these statements of this witness and moved for a mistrial. The court overruled the defense counsel's motion for mistrial and instructed the jury to disregard the evidence of this witness. The defense counsel took timely objection to the overruling of his motion."
W. L. Thompson testified for the State as follows: "That he was with Ernest Mason at the time they went to the defendant's place of business in Putnam County, Georgia. That the place of business consisted of one large room, with two tables about four or five feet apart; that at one table the defendant was sitting drinking a can of beer and there were several other colored people sitting at the same table; that about four or five feet from this table was a second table around which several other colored people were sitting; that as they walked into the room several of the occupants of the room left by the back door; that on the second table they noticed a mason jar and just as they walked into the room a person by the name of Milton Pound removed this bottle from the table and placed the same on the floor; that it was this bottle that they examined and determined to be 'white liquor'; that at no time during the time they came into this place of business did they see the same in the hands of the defendant, but that the only people he saw handle this bottle was a named person, Milton Pound, and that he was sitting at a table approximately four or five feet from the table at which the defendant was sitting. This witness testified further that there were ten or twelve people in the room other than the defendant, and that several had left by the back door at the time they entered the same."
Under the record as agreed upon, "The defendant came on the stand and was properly instructed by the judge that under the law he was authorized to make an unsworn statement to the jury. The defendant told the jury that on July 4, 1954, he had prepared a barbecue for his customers and was serving the same to them at the time that the witnesses for the State, Ernest Mason and W. L. Thompson, entered his place of business; that just before they entered several of the people that were in his place of business left by the back door; that he was sitting at the table drinking a beer and eating a barbecue sandwich when they entered; that he was sitting at a table over next to the wall and that several other colored people were sitting at the table with him; that there was another table in the room approximately four or five feet from this table at which several men were sitting, one of whom was Milton Pound; that Mr. Mason walked over to the other table and found a bottle of a mason jar type under the table at which the men were sitting; that he picked the bottle up and smelled of the same, walked over and told the defendant that he was making a case against him for having liquor.
"The defendant continued with his statement by saying that he had been charged on several separate occasions with having violated the liquor laws of this State, however, on this particular occasion that he was not guilty of any violation of the liquor laws of this State; that on the other occasions he had come to this court and entered his plea of guilty; however, in this particular case that he was not guilty of any violation of the law; that he was operating a place of business for the purpose of serving sandwiches and he did not have in his possession, nor control, any liquor at the time the said Mr. Mason entered his place of business; that the only thing he had there in his place of business was a few beers which he had there for himself; that the liquor that was found there did not belong to him. And that he did not have control or possession of the same at the time Mr. Mason entered his place of business."
Ernest Mason, recalled for the State, testified: "In response to questions of the solicitor-general, this witness undertook to testify that he had on nineteen separate occasions prior to this one made cases against the defendant for violation of the alcoholic laws of this State, and that he has been tried by jury on 4 or 5 occasions. Objections were made by the defense counsel on the grounds that the same was highly prejudicial to the defendant and placed the defendant's character in evidence. And that this evidence was so prejudicial that the jury would be unable to render an impartial verdict in this case. The defense counsel made a motion for a mistrial. The State contended that it had the right to rebut the statement of the defendant that he had on the other occasions entered his pleas of guilty. The court overruled the defendant's motion for a mistrial and disallowed the evidence to remain in the record, and ruled that the record would be the best evidence. At this time the defense counsel objected to the evidence on the grounds that the same was hearsay evidence and that the best evidence would be the certified copies referred to. The court sustained the defendant's objection. The certified copies of this record were never offered into evidence."
1. We have read many cases cited by counsel for the defendant and for the State. In our opinion we have a case rendered by this court which is practically on all fours with the instant case, i.e., Rhoddenberry v. State, 50 Ga. App. 378 (178 S. E. 170). In that case at page 380 this court said: "In order to convict in this case it must be shown that the accused knowingly had, possessed, or controlled intoxicating liquor. She must have done something she ought not to have done or omitted to do something she ought to have done with reference to. the whisky, and while it is not necessary, in order to constitute the offense of unlawful possession, that the defendant should have legal control or that it should have been her property, it is essential that she should have the power to control it, and if the whisky was placed in defendant's restaurant and she knew it, she acquiesces in the possession and is criminally liable therefor. 'Knowledge on the part of the accused is, however, an indispensable element of a provable case. That it may be drawn from circumstances that reasonably induce a belief in its existence is indisputable . . . It is equally true that it can not be inferred from suspicious circumstances alone.' Everman v. Commonwealth, 198 Ky. 5 (248 S. W. 485). The defendant was engaged in the restaurant business. Her restaurant was in a measure a place of public entertainment, and, while we do not hold that it was necessary for the State to prove that the defendant actually saw the whisky, we do think that it was necessary to show facts and circumstances from which it could be reasonably inferred that she knowingly had, possessed, or controlled the whisky. We do not think the evidence meets this requirement; and accordingly it was error to overrule the motion for a new trial. Smith v. State, 5 Ga. App. 834 (63 S. E. 928); Sewell v. State, 11 Ga. App. 754 (75 S. E. 1135); Parker v. State, 24 Ga. App. 158 (100 S. E. 38); Troup v. State, 30 Ga. App. 346 (3) (117 S. E. 410). This case differs from those cases in which whisky is found in the home which is occupied only by the defendant and his family, for no one has the right to go there without their permission. On the other hand a restaurant is a place where whosoever wishes may visit."
The evidence is insufficient, as a matter of law, to sustain the verdict as to the general grounds.
2. Special ground 1 assigns error on the refusal of the court to declare a mistrial, and special ground 2 assigns error on the court's charge; and when viewed in the light of this whole record, they are without merit.
Judgment reversed. Townsend and Carlisle, JJ., concur.