Shepherd v. State , 77 Ga. App. 857 ( 1948 )

Where, as here, and under the facts of this case, the court charged that if the contraband whisky was found on the property, that is, in the automobile of the defendant, that the presumption of law is that the whisky was in the possession of the defendant, but that this was a rebuttable presumption, and where, as here, the evidence shows that the automobile had not been in the possession of the defendant for practically a week, but had been in two garages accessible to numerous other people, the case must be reversed.

DECIDED NOVEMBER 6, 1948. The defendant was convicted of illegally possessing eight pints of whisky in Troup County, a dry county. He filed his motion for a new trial based on the general grounds and three special grounds. This motion was overruled and error is assigned on the judgment overruling it.

The undisputed evidence shows that the defendant on the alleged date of the crime, February 11, 1948, owned a Ford coupe car. The car first comes into the picture on a public road, unable to move under its own power. It was carried from this place to a garage in LaGrange, Georgia. It was carried to this garage not by the defendant, but by a man named Burgess, who does not appear as a witness. The evidence does not reveal who was driving the car when it stopped before it was carried to the garage. The car stayed in the garage where Burgess had carried it some three or four days. Numerous employees were working on the car in the garage; numerous customers of the garage were in and about the car during this time. After the expiration of this three or four day period and when this service garage had completed the car insofar as their equipment could do so, the owner of this garage towed the car to another garage for the purpose of exchanging the motor. The car was left by the first garage man in front of the place of business of the second garage man. The car was then taken charge of by the second garage man's employees and it was again accessible to customers and employees of this second garage. After the car had remained at this second garage about a day and a half, the officers searched it. They found, in an unlocked compartment back of the seat, accessible to anyone who chose to open and close it, eight pints of tax-paid liquor and one empty carton purporting to have contained whisky. The evidence is that the defendant was not at either of the garages while his car was being worked on, although he did phone the garage man to fix it. There is no dispute that it was the defendant's car. It was repaired about a day after the officers searched it, and was obtained from the garage by the defendant. The defendant in his statement denied any knowledge of the whisky being in the car.

Since the case is to be reversed on a special ground, we will not discuss the general grounds. This is true for the reason that if the case is to be tried again, the evidence might be different. We therefore move to a discussion of the special grounds. 1. Special grounds 1 and 2 assign error on the charge of the court. Those grounds are, omitting the formal parts: "1. ``I don't remember charging that. The charge was that if the whisky was found on property belonging to the defendant, the presumption of law would be that it was his whisky, but that presumption can be rebutted. You look to the evidence and determine whether or not the whisky, if any, was found on his property. If you find from the evidence that the whisky was found on property of the defendant, if there was any whisky found, the legal presumption of law would be that it was the defendant's whisky, but it is only a presumption of law and can be rebutted, all of which is a question of fact for you to pass on. Is that sufficient?'" Special ground 2 complains of this excerpt from the charge of the court: "If you find from the evidence that the whisky was found on property of defendant, if there was any whisky found, the legal presumption of law would be that it was the defendant's whisky." Under the facts of this case we do not think this a sound, abstract principle of law. Counsel for neither side have called our attention to any decision in our State and we have been able to find no such decision that would authorize the court to instruct the jury as a matter of law that if whisky were found, as here, in an automobile belonging to a person and which automobile had not been in the possession of the defendant for practically a week, that the presumption of law would be that such whisky was in the possession of the owner of the car and that the burden would be shifted to the owner to show that the whisky was not in the automobile with his knowledge or consent. It would seem that this would be a dangerous rule for the numerous owners of motor vehicles. It would subject the owner of a car to a legal presumption against such owner where contraband whisky was found in his car which had not been in his possession but in the possession of others for days or weeks or perhaps months. We are not unmindful that where contraband articles are found on the premises of one that the presumption of law that possession of the premises goes to the extent that he also possesses the contraband articles is well established. Those are not the facts here. The court charged the jury here in effect that if the contraband whisky was found onproperty of the defendant on the automobile of the defendant, thepresumption of law would be that it was the defendant's whisky. This seems to carry the rule too far, when the evidence, as here, shows that the car had been in the possession of others for practically a week before the whisky was found. On this question the State called to our attention particularly the case of Hartv. State, 53 Ga. App. 367 (9) (186 S.E. 152). We have read this case carefully and can not see that it reflects any light on the instant case. This case is reversed on this charge of the court.

2. The remaining special ground assigns error because the court failed to charge on the weight of circumstantial evidence, and failed to charge "to warrant a conviction on circumstantial evidence the proved facts shall not only be consistent with the hypothesis of guilt, but shall exclude every other reasonable hypothesis save that of the guilt of the accused." While we think it is a better practice to charge the weight of circumstantial evidence, but still, in the instant case the court did charge the definition of circumstantial evidence and did charge fully with reference to presumption of innocence and reasonable doubt, etc. Should the case be tried again, no doubt the court will charge on the weight of circumstantial evidence; if he does not, the defendant can make a written request to do so, and should the court then fail to do so, and the evidence be close, we might then be inclined to consider whether, in view of the whole charge, the failure to charge on the weight of circumstantial evidence would be reversible error. The court erred in overruling the motion for a new trial.

Judgment reversed. MacIntyre, P. J., and Townsend, J.,concur.