Autrey v. State

• Decision Date: 24 April 1916
• Docket Number: 7097.
• Parties: AUTREY v. STATE.
• Court: Georgia Court of Appeals

88 S.E. 715

18 Ga.App. 13

AUTREY v. STATE.

No. 7097.

Court of Appeals of Georgia

April 24, 1916

Syllabus by the Court.

In a criminal case, where the proof of the defendant's guilt depends wholly upon circumstantial evidence, the jury should be instructed that, if the proved facts are consistent with the innocence of the accused, the defendant is entitled to an acquittal; and an omission to charge the substance of section 1010 of the Penal Code of 1910 in such a case is reversible error.

The ruling in the present case is controlled by the decision of this court in Lewis v. State, 6 Ga.App. 205, 64 S.E 701. "Where one is charged with the offense of keeping on hand at his place of business alcoholic, spirituous, malt or intoxicating liquors, prohibited by law, and intoxicating liquors are shown to have been found there, such evidence is sufficient to support the inference that the forbidden liquors were kept by him; but this inference is not conclusive, for it may be shown, among other things, that they were not the property of the accused," and were brought to his place of business without his knowledge and were there without his consent.

The circumstances in the present case, if the jury had been instructed as required by the ruling of this court in Riley v. State, 1 Ga.App. 651, 57 S.E. 1031 Harvey v. State, 8 Ga.App. 660, 70 S.E. 141 Allen v. State, 14 Ga.App. 115, 80 S.E. 215, and the ruling of the Supreme Court in Weaver v. State, 135 Ga. 317, 69 S.E. 488, would have fully warranted the conviction of the accused; but, considered as a whole, the evidence adduced would not have compelled the jury to find that any of the liquor to which the testimony relates was kept in the defendant's place of business or had been brought there with his knowledge or consent.

For this reason the failure of the judge to instruct the jury upon the rule applicable to circumstantial evidence must be deemed to have been prejudicial to the accused, and a new trial should have been granted.

Error from City Court of Columbus; G. Y. Tigner, Judge.

Ben Autrey was convicted of keeping whisky at his place of business, and brings error. Reversed.

Broyles, J., dissenting.

Ed. Wohlwender and Paul Blanchard, both of Columbus, for plaintiff in error.

T. H. Fort, Sol., of Columbus, for the State.

RUSSELL, C.J.

Judgment reversed.

BROYLES J. (dissenting).

The defendant was convicted of keeping whisky on hand...