Gibbs v. State

91 Ga. App. 519 (1955)

86 S.E.2d 369

GIBBS v. THE STATE.

35523.

Court of Appeals of Georgia.

Decided February 25, 1955.

Frank B. Stow, Robert E. Andrews, for plaintiff in error.

Jeff C. Wayne, Solicitor-General, contra.

TOWNSEND, J.

1. Where, as here, a conviction depends entirely upon circumstantial evidence, such evidence must be such as to exclude every other reasonable hypothesis save that of the guilt of the accused.

2. Testimony, on a trial for possession of illegal liquor, that liquor was found under some honeysuckle vines on a vacant lot about 75 yards away from the defendant's house, is, of itself, insufficient to sustain a conviction. Roper v. State, 67 Ga. App. 272 (19 S. E. 2d 746).

3. The only other testimony in this case implicating the defendant was that of an arresting officer, who testified that he found two cases of non-tax-paid whisky under some cardboard behind a garage located 20 or 25 feet back of the house, but that he did not know whether the whisky was on the defendant's premises, and, when he confronted the defendant with the cache, she said: "I told Walt Gibbs to move the whisky, and he said it was his damned property and his damned whisky and he would do what he wanted to do with it." There being no proof that this whisky was located on premises under the control of the defendant, this evidence, also, is insufficient to sustain a conviction. Jelks v. State, 36 Ga. App. 638 (137 S. E. 840); Weehunt v. State, 368 Ga. App. 368 (66 S. E. 2d 148).

The fact that the arresting officer took the defendant to Walter Gibbs, who, in the presence of the defendant, denied any connection with the whisky, is not sufficient of itself to prove that the whisky was found on the premises of the defendant. Nor is evidence as to her knowledge of the whisky sufficient to convict her unless she knowingly allowed it to remain on premises over which she had control. Buchanan v. State, 34 Ga. App. 155 (128 S. E. 686).

The trial court erred in denying the motion for a new trial.

Judgment reversed. Gardner, P. J., and Carlisle, J., concur.