Ennis v. State, 48849
| Decision Date | 30 January 1974 |
| Docket Number | No. 2,No. 48849,48849,2 |
| Citation | 204 S.E.2d 519,130 Ga.App. 716 |
| Parties | Hamilton B. ENNIS v. The STATE |
| Court | Georgia Court of Appeals |
Thomas H. Harper, Jr., Atlanta, for appellant.
Edward E. McGarity, Dist. Atty., McDonough, for appellee.
Syllabus Opinion by the Court
The defendant was arrested in Lamar County on the discovery of a film cartridge containing less than an ounce of marijuana on top of a china cabinet in his father's house, and a pipe useful in smoking this drug, in an automobile belonging to his mother. These items were turned up on a search of the premises with warrant. The evidence established that the parents lived in Decatur, Georgia, where a bedroom was set aside for the defendant's use and where he frequently stayed, while also staying at times in a friend's house in Atlanta, Fulton County, and also having unrestricted permission to stay in the Lamar County house where the search was made. This latter was vacant much of the time; earlier in the year it had been rented, and several weeks before the arrest a girl known to the defendant, and with the permission of his father, had stayed there for six weeks or so to isolate herself in an attempt to break the barbiturate habit. Prior to the arrest the defendant had been seen once in the house, and another time in the town, and that was all. He testified that he did not see the house for six months at a time; he came down from Atlanta on occasion to spend the night, but never stayed more than two nights, never locked the house, and the presence of the drug was unknown to him. The car, which belonged to his mother, had been sitting unlocked in the street for a week.
Under the undisputed evidence persons other than the defendant had had equal access to the premises and to the automobile (which was not the vehicle driven by him to the house). The length of time the marijuana had been on top of the china cabinet was not ascertainable. The defendant was tried and convicted, his motion for new trial was overruled, and he appeals. Held:
1. It is not ground for a new trial that on a felony indictment a defendant may be convicted of a lesser included crime which is itself only a misdemeanor. Code Ann. § 26-505.
2. Where a conviction for possession of contraband depends entirely on circumstantial evidence, it must both be consistent with the hypothesis of guilt and must exclude every other reasonable hypothesis. Code § 38-109; Johnson v. State, 79 Ga.App. 210, 53 S.E.2d 498. In Clark v. State, 66...
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...it must both be consistent with the hypothesis of guilt and must exclude every other reasonable hypothesis. Ennis v. State, 130 Ga.App. 716, 717(2), 204 S.E.2d 519 (1974)." (Punctuation omitted; emphasis supplied.) Paden v. State, supra at 189, 453 S.E.2d 788; see also Hicks v. State, supra......
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