Houston v. State , 55 Ga. App. 195 ( 1937 )

Broyles, C. J.

The defendant was convicted of possessing whisky. The undisputed evidence for the State showed that whisky was found in the defendant’s house where he, his wife, and several other relatives lived, and that the defendant was not at the house when the whisky was discovered. The undisputed evidence of a witness for the defense (a sister of the defendant’s wife) disclosed that she, her father, her mother, and her brother (Boy Cheeves) lived in the house with the defendant and his wife, and that the whisky was brought into the house by Boy Cheeves, after the defendant had left the house on the morning of the day the whisky was found by the officers. Another witness for the defense testified that he saw Boy Cheeves find some whisky in a sack, and that Boy took the whisky into the defendant’s house on the day it was found there by the officers. This evidence also was uncontradicted. Under these circumstances, the evidence tending to connect the defendant with the offense of possessing whisky was wholly circumstantial, and was not sufficient to exclude every reasonable hypothesis save that of his guilt. The court erred in refusing a new trial.

Judgment reversed.

MacIntyre and Guerry, JJ., concur.