dissenting. 1. Was there enough evidence to convict defendant of possession of illegal drugs? Defendant was found on the front seat of an automobile in an intoxicated condition; he was not under the steering wheel; did not own or control the car; had not driven it to its parked position, but was in the car merely as a passenger. The car was borrowed by another person. The driver and others got out of the car and left it. A partly smoked marijuana cigarette was found on the front seat adjacent to defendant, and one capsule containing secobarbital was found on the floorboard of the car on the driver’s side, and another capsule was found on the floorboard on the passenger’s side. He was not holding the cigarette, nor was it touching him. In this situation, does the circumstantial evidence warrant a conviction?
The majority opinion affirms the conviction, and cites several cases, none of which supports the opinion. To the contrary, in one of the cited cases, to wit, Watson v. State, 93 Ga. App. 368 (91 SE2d 832), the following charge to the jury is approved, to wit: "If a person is driving an automobile or has an automobile in his *714possession, custody or control, all in that automobile is presumed to be his, and in his possession. . .” (Emphasis supplied.) Thus, it is presumed that the driver and/or person in control of the car — not the defendant passenger — was presumed to own and have control of all that was in the car. In the cited case it was proven that the defendant had given a box containing contraband liquor to a companion and instructed him to run with it; and, of course, that was sufficient to convict as to possession, but is in no way similar to the facts in the present case.
In Cheatham v. State, 57 Ga. App. 858 (197 SE 70), also cited by the majority, the automobile in question was shown to have been recently stolen by defendant and others, and of course, that placed him and them presumptively in possession of the car and its contents. In Griggs v. State, 40 Ga. App. 542 (150 SE 438), also cited by the majority, the whiskey was shown to be resting between the legs of the defendant when it was found. We repeat, and emphasize, not a one of these cases cited by the majority has facts which are even vaguely similar to the facts in the case now under consideration. None is authority for a conviction of the defendant on circumstantial evidence.
A discussion of the very rigid requirements as to conviction by circumstantial evidence is found in Ivey v. State, 226 Ga. 821, 824 (177 SE2d 702), to wit: ". . . the rule is otherwise where liquor is found on premises occupied by the accused and it appears that persons other than the accused and members of his immediate household of which he is the head had equal opportunity with him to commit the crime.” Thomas v. State, 99 Ga. App. 25 (107 SE2d 687); Morris v. State, 119 Ga. App. 157 (166 SE2d 382). Again, in Reed v. State, 127 Ga. App. 458, 459 (194 SE2d 121), it is stated: "Here again, since the evidence shows that there were others than the defendant who had equal opportunity to commit the offense for which he is charged, the circumstantial evidence is insufficient to sustain a conviction.” Again, in Gee v. State, 121 Ga. App. 41, (1) (172 SE2d 480), it is stated: "It is enumerated as error that the verdict of the jury is without evidence to support it. We agree. Merely finding contraband on premises occupied by a defendant is not sufficient to support a conviction if it affirmatively appears from the evidence that persons other than the defendant had equal opportunity to commit the crime. Harper v. State, 85 Ga. App. 252 (69 SE2d 102); Summerville v. State, 66 Ga. App. 61 (17 SE2d 82); Savage v. State, 28 Ga. App. 543 (112 SE 523); Toney v. State, 30 Ga. App. 61 (116 SE 550). To warrant a conviction on *715circumstantial 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.’ Code § 38-109. And see Eads v. State, 42 Ga. App. 473 (156 SE 647); Morris v. State, 119 Ga. App. 157 (166 SE2d 382).”
In the present case, there were two presumptions actively operating in favor of defendant. First, it was presumed that the contents of the car were owned and controlled by the owner and/or driver, and defendant was neither owner nor driver. Next, the defendant was presumed to be innocent of any violation of law until proven guilty beyond a reasonable doubt. The state relied on circumstantial evidence, but as was so forcefully held in the Gee case, supra: "... '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.’ Code § 38-109.” It was not only necessary for the state to prove that defendant could have or may have committed the crime, but it had to go that long step further of "excluding every other reasonable hypothesis,” to wit, that no person other than the defendant was owner and/or in control of the marijuana in this case. That the state has failed to do.
The statute, to wit, Code § 38-109, plainly recites that where circumstantial evidence is relied on for a conviction, 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.” Exactly what does this language mean? It means that unless there is direct evidence to show defendant is guilty, a conviction cannot stand unless the proved facts do two things, to wit: 1. The proved facts must be consistent with the defendant’s guilt, and in addition. 2. The proved facts shall exclude every other reasonable hypothesis (or theory) save that of the guilt of the accused. What other reasonable hypothesis, or theory, exists in the case as to the actual perpetrator of the crime? Who else could have committed it besides defendant? Why, the driver or owner of the car could have done so, especially as the law presumes that "all in that automobile is presumed to be his, and in his possession. ” Watson v. State, 93 Ga. App. 368 (91 SE2d 832).
Did the owner and/or the driver have equal opportunity with the passenger to commit the crime? Was there any evidence to suggest that they could not have committed the crime? None, absolutely none! Then why point the guilty finger at the defendant, who was *716presumed reoí to own or control the drugs, and passenger, who was sitting in the car while intoxicated, as he was not the driver or owner, and who was not shown by any evidence to own or control it, and who was not shown by evidence to have the drugs on his person when he was arrested?
2. I further dissent from the majority’s reversal of the trial court on his charge as to the sentence. I believe the charge as given was correct. Further, even if this charge were erroneous, the jury recommended that he be punished as for a misdemeanor, which the trial judge followed, and sentenced him to serve 12 months.
However, the error in Division 1 requires a reversal of the entire judgment and not merely the sentence.