2020 Georgia Code
Title 3 - Alcoholic Beverages
Chapter 3 - Regulation of Alcoholic Beverages Generally
Article 2 - Prohibited Acts
§ 3-3-29. Possession, Sale, or Purchase of Distilled Spirits for Which Taxes Not Paid

Except as otherwise expressly provided for by law, no person knowingly and intentionally shall possess, sell, or purchase any distilled spirits upon which the taxes imposed by this title have not been paid.

(Ga. L. 1937-38, Ex. Sess., p. 103, § 11; Code 1933, § 5A-516, enacted by Ga. L. 1980, p. 1573, § 1; Ga. L. 1993, p. 464, § 1.)

- Seizure and disposition as contraband of alcoholic beverages on which taxes or license fees not paid, § 3-2-33 et seq.

JUDICIAL DECISIONS

Elements of offense.

- In order to convict a person of unlawful possession of liquor, it must be shown that the accused knowingly had, possessed, or controlled intoxicating liquor, and the accused must have done something the accused ought not to have done or omitted to do something the accused ought to have done with reference to the whiskey, and while it is not necessary in order to constitute offense of unlawful possession that the accused should have legal control or that it should have been the accused's property, it is essential that the accused should have power to control it, and if whiskey was placed in the accused's place of business and the accused knew it, the accused acquiesces in the possession and is criminally liable therefore. Kelly v. State, 91 Ga. App. 421, 85 S.E.2d 794 (1955) (decided under former Ga. L. 1937-38, Ex. Sess., p. 103).

To violate this section, one must have in one's possession whiskey on which the tax has not been paid. Pierce v. State, 200 Ga. 384, 37 S.E.2d 201, answer conformed to, 73 Ga. App. 627, 37 S.E.2d 431 (1946) (decided under former Ga. L. 1937-38, Ex. Sess., p. 103).

It is an offense for one to possess whiskey in a container which does not have affixed thereon the necessary tax stamp. Pierce v. State, 73 Ga. App. 627, 37 S.E.2d 431 (1946) (decided under former Ga. L. 1937-38, Ex. Sess., p. 103).

- Where a person is indicted merely for possession of whiskey at place of business for purpose of sale in wet county, the indictment charges no offense, unless it further charges that the whiskey possessed did not bear required stamps. Womack v. State, 60 Ga. App. 761, 5 S.E.2d 96 (1939) (decided under former Ga. L. 1937-38, Ex. Sess., p. 103).

- Where the accusation charges the defendant with the offense of possessing non-tax-paid whiskey in dry county, which is a specific crime, the burden is on the state to show that the whiskey found in possession of the defendant is not tax-paid. Ivey v. State, 84 Ga. App. 72, 65 S.E.2d 282 (1951) (decided under former Ga. L. 1937-38, Ex. Sess., p. 103).

Upon trial of one charged with possession of non-tax-paid whiskey, the burden is upon the state to establish that the whiskey found in the possession of the defendant is not tax-paid. Wilson v. State, 93 Ga. App. 43, 90 S.E.2d 605 (1955) (decided under former Ga. L. 1937-38, Ex. Sess., p. 103).

- Mere introduction of accusation with pleas of guilty thereon, embracing same crime for which defendant is on trial, without proof of details as to manner in which previous acts were committed, does not constitute similarity of transactions so connected as to reveal knowledge, plan, or system, and therefore the court erred in admitting, over objections, prior accusation and plea of guilty of defendant, charged with possession of non-tax-paid whiskey, to a previous charge of same offense. Chambers v. State, 76 Ga. App. 269, 45 S.E.2d 724 (1947) (decided under former Ga. L. 1937-38, Ex. Sess., p. 103).

- Where, upon approach of arresting officers, an attempt is made to dispose of liquid identified by witnesses by sense of smell as being whiskey or whiskey poured into water, this is a circumstance which may be considered in prosecution for possession of non-tax-paid whiskey. Corbin v. State, 84 Ga. App. 763, 67 S.E.2d 478 (1951) (decided under former Ga. L. 1937-38, Ex. Sess., p. 103).

- Although proof that illegal liquor was found in the home of the accused, the accused being the head of the household, raises a rebuttable presumption of the accused's possession thereof, proof of which is sufficient to make out a prima facie case, where the premises are occupied by the defendant with others not members of the accused's immediate family, the presumption does not obtain. Brown v. State, 99 Ga. App. 713, 109 S.E.2d 813 (1959) (decided under former Ga. L. 1937-38, Ex. Sess., p. 103).

Evidence that non-tax-paid whiskey was found on premises in possession and control of defendant raises a rebuttable presumption that possession thereof is that of defendant. West v. State, 103 Ga. App. 71, 118 S.E.2d 491 (1961) (decided under former Ga. L. 1937-38, Ex. Sess., p. 103).

- Where officers, while in search of a whiskey still which had been reported to them, heard nearby noises of bottles being shoved around and clinking together, and where they immediately investigated and found the defendant and the defendant's brother together examining a strainer, and further found over 70 pints of bottled whiskey not having required state revenue stamps, such evidence was sufficient to show control and possession in the defendant and the defendant's brother and to support a verdict of guilty against the defendant. Ridley v. State, 66 Ga. App. 658, 19 S.E.2d 51 (1942) (decided under former Ga. L. 1937-38, Ex. Sess., p. 103).

Jury was authorized to conclude from evidence that defendant was a confederate with the defendant's brother and another individual in illegal possession of non-tax-paid liquor, that a conspiracy existed between the three to violate the liquor law, and that while another individual was driving and owned the car, the 45 gallons of whiskey in the back of the car were in the joint and exclusive possession of the three. Lee v. State, 72 Ga. App. 643, 34 S.E.2d 645 (1945) (decided under former Ga. L. 1937-38, Ex. Sess., p. 103).

Where it appears that defendant is in sole control of premises and public does not have access thereto, where the only tracks from cache of liquor lead to defendant's home and fresh tracks show recent travel from house to liquor, and where there are no other residents in vicinity and cache is not near any road, trail, alley, or path used by others than the defendant and the defendant's household, the evidence, though circumstantial, is sufficient to negate every other reasonable hypothesis save that of guilt of accused. Corbin v. State, 84 Ga. App. 763, 67 S.E.2d 478 (1951) (decided under former Ga. L. 1937-38, Ex. Sess., p. 103).

Testimony of state's witness that the witness found non-tax-paid whiskey in a half-gallon jar on top of some clothes in closet of room occupied by defendant, together with glass of whiskey in kitchen in cabinet that had secret panel behind it was sufficient, coupled with defendant's admission that it was "all her house," to sustain conviction of possessing illegal liquor, although there were other people in house at time arrest was made. Grantley v. State, 90 Ga. App. 735, 84 S.E.2d 98 (1954) (decided under former Ga. L. 1937-38, Ex. Sess., p. 103).

A conviction may be had upon a free and voluntary confession corroborated only by proof of the corpus delicti, and where, upon the trial of one charged with possession of non-tax-paid whiskey, it appears from the evidence that police officers found some five and one-half pints of non-tax-paid liquor in defendant's home, and that defendant freely and voluntarily confessed that the non-tax-paid liquor belonged to the defendant, the jury is authorized to find the defendant guilty as charged. Poythress v. State, 95 Ga. App. 124, 97 S.E.2d 165 (1957) (decided under former Ga. L. 1937-38, Ex. Sess., p. 103).

Where five and one-half gallons of moonshine were found in back seat of long-unused automobile in back yard of petitioner's residence, which yard was fenced with a fence of sufficient construction and security to keep contained therein a dog, and a well-beaten path led from petitioner's back door to automobile, and there was a quantity of used whiskey bottles under back of petitioner's house, evidence was sufficient to authorize conviction for possessing non-tax-paid whiskey. West v. State, 103 Ga. App. 71, 118 S.E.2d 491 (1961) (decided under former Ga. L. 1937-38, Ex. Sess., p. 103).

- The evidence, being wholly circumstantial, was insufficient to sustain conviction for offense of possessing non-tax-paid whiskey. Weehunt v. State, 80 Ga. App. 368, 56 S.E.2d 148 (1949) (decided under former Ga. L. 1937-38, Ex. Sess., p. 103).

Whiskey found by a trail or ditch or in bushes at some distance from the house, and especially when on property not under control of the defendant, has been held insufficient as the foundation of a conviction. Freeman v. State, 84 Ga. App. 757, 67 S.E.2d 314 (1951) (decided under former Ga. L. 1937-38, Ex. Sess., p. 103).

Where the conviction for possessing non-tax-paid whiskey depends entirely upon the circumstance of liquor being found on premises belonging to or under control of the defendant, and where such liquor is located by a public path, in a public part of building, in an unenclosed field by a travelled road or alley, or other circumstances appear not negating the possibility that a person other than the defendant might have had the opportunity to conceal the liquor in place where it was found, a conviction is unauthorized. Corbin v. State, 84 Ga. App. 763, 67 S.E.2d 478 (1951) (decided under former Ga. L. 1937-38, Ex. Sess., p. 103).

OPINIONS OF THE ATTORNEY GENERAL

Editor's notes.

- In light of the similarity of the statutory provisions, opinions rendered under former Ga. L. 1937-38, Ex. Sess., p. 103 are included in the annotations for this Code section.

Person in possession of untaxed liquor in wet (now any) county is not relieved of state tax thereon by its seizure as contraband and by criminal prosecution. 1945-47 Op. Att'y Gen. p. 377 (rendered under former Ga. L. 1937-38, Ex. Sess., p. 103).

RESEARCH REFERENCES

Am. Jur. 2d.

- 45 Am. Jur. 2d, Intoxicating Liquors, §§ 47 et seq., 90 et seq., 168 et seq., 193, 194, 318 et seq, 374 et seq.

- 48 C.J.S., Intoxicating Liquors, §§ 454 et seq., 509, 520 et seq.

- Right to arrest without a warrant for unlawful possession or transportation of intoxicating liquor, 44 A.L.R. 132.

What constitutes "sale" of liquor in violation of statute or ordinance, 89 A.L.R.3d 551.