Circumstantial evidence held not sufficient to authorize conviction of unlawful possession of intoxicating liquor.
In his statement to the jury the defendant said: "That morning Mac and this other fellow came up there I was on the side of the house, cutting stove wood, and my wife was cooking. We worked on the night shift at Villa Rica. Mr. Abercrombie said he had a search warrant. I said go ahead. I went with him into the house. He found the empty cans in the left room. There were no windows in this room. Lawrence Kimbell had left an old safe in there and piles of junk. He opened up the cans, and they smelled like liquor had been in them. The room where my brother sleeps is next to the room where the cans were. Mr. Abercrombie asked me what was that in bed. I told him it was my brother. Later I heard Mr. Abercrombie throw something down in the front yard. It was some cans. He said he found it in the woods. We stepped it from where he said he found it. It was 362 steps. He said, `You are stepping mighty long steps.' There was plenty of pine straw on the ground; you couldn't see any tracks in the woods. We toted from down there. The ground was plumb dry. Lawrence Kimbell hadn't been moved but about two weeks. I told Mr. Abercrombie to look in the field where he found the gallon can, for my tracks. He looked and didn't find any. I didn't have anything at all to do with the liquor. Me and my wife both worked. I didn't have anything but the house. Lawrence made a crop there last year. I wasn't in possession of anything but the house. The trail leads to the spring too. We didn't have a well. I told Mac that morning it looked like water in the cans. He said he would have it analyzed. My brother was staying there. He is twenty-one years old, going on twenty-two. He had his own room in the other side of the house, and he stayed there with me, and we had two cars. We kept the cars under the shelter. It is a long shelter, big enough for two cars. Even if there had been tracks from the house, as many times as we drove the cars across the yard it would have spoiled them out. I was not in possession of anything but the house. I was not even supposed to cut wood. We had been cutting dead wood. Lawrence Kimbell had a watermelon patch and garden on the west side of the house. The trail was a *Page 295 beat trail. I tried to get them to show me tracks, and he couldn't find fresh tracks. I didn't have anything to do with it."
It might be noted that there were two cars in the yard or shelter, and that the defendant's brother or brother-in-law was asleep in his bedroom in the house, and that the defendant stated that he lived with him and worked in Villa Rica. It also appears that a man had lived there only five or six weeks before, and the defendant had lived there for only about two weeks when the search was made. It appears that that man had pled guilty to selling liquor, and that the liquor so found was not in the house or in any enclosure but was in the woods, and the defendant had rented only the house. Joe Summerville was convicted of the offense of misdemeanor, for that he did "have, control, and possess certain alcoholic and prohibited liquors on which the Georgia State revenue stamps had not been affixed and in excess of one quart." His motion for new trial based solely on the general grounds was overruled, and he excepted. The evidence connecting the defendant with the offense charged was not sufficient to exclude every reasonable hypothesis except that of his guilt. It follows that his conviction was unauthorized, and that the overruling of his motion for new trial was error.
Judgment reversed Broyles, C. J., and Gardner, J.,concur.