Ingram v. State , 37 Ga. App. 374 ( 1927 )

Luke, J.,

dissenting. The finding of whisky in a car driven by the defendant, under the circumstances shown by the evidence, did not authorize the verdict finding him guilty of having whisky in his possession. No witness swore that the defendant possessed or controlled the whisky; the undisputed evidence showed that the car belonged to one Eight, who was in the car when the whisky was found; and the preponderance of the evidence showed that Eight possessed and controlled the whisky. While there was direct evidence as to finding the whisky, the evidence as to the defendant’s possessing and controlling it was circumstantial, and did not'exclude every reasonable hypothesis, save that of the guilt of the accused. The court therefore, in my opinion, erred in overruling the motion for a new trial. See Toney v. State, 30 Ga. App. 61 (116 S. E. 550); Murray v. State, 36 Ga. App. 90 (136 S. E. 92); Young v. State, 35 Ga. App. 193 (132 S. E. 453).