John Cannon was tried in the criminal court of Fulton County on an accusation containing three counts. Count I charged that in said county on July 24, 1943, he "did engage in and sell, as a retail dealer, distilled spirits and alcohol, without first obtaining a license from the State Revenue Commissioner of the State of Georgia." Count 2 charged that on July 24, 1943, he possessed forty-eight half pints and three pints of whisky in Fulton County, and had not been licensed by the State Revenue Commissioner to sell whisky as a retail or wholesale dealer. Count 3 charged that on September 24, 1943, in said county, he sold malt beverages as a retail dealer, without first securing a license from the State Revenue Commissioner. On the trial, after the close of the State's evidence, counsel for the accused made a motion that count 2 be stricken, and that a verdict for the defendant be directed on counts 1 and 3. The court sustained the motion as to counts 2 and 3, but overruled it as to count 1. The jury returned a verdict of guilty on count 1, and of not guilty on counts 2 and 3. Subsequently the defendant's certiorari was overruled by a judge of the superior court and that judgment is assigned as error. *Page 758
After the disposal of counts 2 and 3, the only charge before the court and jury was that the defendant had sold distilled spirits and alcohol as a retail dealer, without first obtaining a license from the State Revenue Commissioner. The evidence adduced to show the guilt of the accused on count 1 was wholly circumstantial, and was insufficient to exclude every reasonable hypothesis except that of his guilt, and it failed to show beyond a reasonable doubt that he had sold distilled spirits or alcohol. The cases of Thomas v. State,65 Ga. App. 749 (16 S.E.2d 447), and Martin v. State,68 Ga. App. 169 (22 S.E.2d 193), cited in behalf of the defendant in error, are distinguished by their facts from this case. The verdict was contrary to law and the evidence; and the overruling of the certiorari was error.