Roper v. State , 67 Ga. App. 272 ( 1942 )

Broyles, C. J.

The defendant was convicted of possessing whisky which did not bear the tax stamps required by law. The evidence disclosed that the officers went to a tobacco farm which was in the defendant’s possession as tenant. They found the defendant sitting in his automobile. In the back of his car was an empty keg with a sheet spread over it. The keg had the smell of whisky in it. About seventy-five yards from the defendant’s residence, near a tobacco house, the officers found in the weeds a quart bottle about half full of unstamped whisky. There were tracks leading from defendant’s residence to the tobacco house, the tobacco house being in the defendant’s possession. The tobacco house was in an open field, and the officers testified that any one passing by> could have put the whisky in the weeds. The State introduced documentary evidence showing that the defendant had previously been convicted of similar offenses. Held, that the evidence was wholly circumstantial, and, while raising a strong suspicion against the accused, was insufficient to exclude every reasonable hypothesis save that of his guilt. The court erred in denying a new trial.

Judgment reversed.

MacIntyre and Gardner, JJ., concur.