The evidence did not establish the guilt of the accused beyond a reasonable doubt.
DECIDED NOVEMBER 7, 1941. This defendant was convicted on an accusation charging him with the possession of more than one quart of tax paid whisky in a "dry" county. His motion for new trial was overruled and he excepted.
The evidence for the State in substance showed that the sheriff went to the house of the defendant and found five pints of tax paid liquor on a cabinet in the kitchen. The defendant and his wife were present. The sheriff inquired if any of the whisky belonged to the wife. She replied that some of it did. The defendant made a statement in which he claimed that one pint of the whisky belonged to his wife, that two pints belonged to him and that two pints belonged to "the boy." Hal Durrett, sworn for the defendant, testified that he lived in the house with the defendant at the time of the seizure of the five pints of whisky; that two pints of it belonged to him and that the defendant's wife said one pint belonged to her. He thought the whisky was the same brand. *Page 130
As we view the case it is unnecessary to discuss the special grounds, for the reason that in our opinion the controlling point is with reference to the general grounds. It is true that the presumption is that the five pints of whisky belonged to the defendant as the head of the house. But this is a rebuttable presumption. Barron v. State, 46 Ga. App. 829 (169 S.E. 323); Isom v. State, 32 Ga. App. 75 (122 S.E. 722);Young v. State, 22 Ga. App. 111 (95 S.E. 478). Can it be said, as a matter of law, that this presumption was not overcome by the uncontradicted showing of the defendant? In his statement the defendant contended that two pints belonged to him, one pint to his wife, and that "the boy" (the young man boarder) had brought in two pints. While we realize that the statement of the defendant should receive only such weight as the jury might see fit to give it, yet the jury could not disregard the uncontradicted and unimpeached evidence of the witness Durrett, to the effect that two pints of the whisky were his, and that of the sheriff to the effect that Mrs. Gibbs, the wife, at the time the whisky was found and in the presence of the defendant, confessed, upon inquiry of the sheriff, that a part of the whisky was hers.
To say the least, the evidence as a whole was not sufficient to stamp the defendant guilty beyond a reasonable doubt.
Judgment reversed. Broyles, C. J.,concurs.