Gee v. State, 48925
| Citation | 130 Ga.App. 634,204 S.E.2d 329 |
| Decision Date | 24 January 1974 |
| Docket Number | No. 48925,No. 2,48925,2 |
| Parties | Horace E. GEE et al. v. The STATE |
| Court | United States Court of Appeals (Georgia) |
Greer, Sartain & Carey, Jack M. Carey, Gainesville, for appellants.
Jeff C. Wayne, Dist. Atty., Roland H. Stroberg, Gainesville, for appellee.
Syllabus Opinion by the Court
The two defendants appeal from their convictions of possessing amphetamines in violation of the Georgia Drug Abuse Control Act upon which they each received a sentence of two years' imprisonment and a $2,000 fine. Held:
1. In enumerated error 1, the appellants contend that the verdicts were not supported by the evidence, as it did not exclude every other reasonable hypothesis except that of guilt.
"Where the evidence shows that (contraband) was found in the place of business of one charged with possession of such (contraband), an inference arises that said (contraband) was in the defendant's possession. Such inference is not conclusive, but may be rebutted by showing that such (contraband) was not the defendant's property and was not there with his knowledge and consent.' Kent v. State, 105 Ga.App. 312, 313, 124 S.E.2d 296. If (contraband) is in the defendant's business premises and he knows it, he possesses it by acquiescence and is criminally liable therefor. The defendant's knowledge may be proved by facts and circumstances from which it could be reasonably inferred that he knowingly had, possessed, or controlled the (contraband). Rhoddenberry v. State, 50 Ga.App. 378, 380, 178 S.E. 170.' Fields v. State, 114 Ga.App. 423, 151 S.E.2d 546. 'The inference will not arise where it appears that the (contraband) is found in a location equally accessible to the defendant and others not members of his immediate family and where there is no direct evidence connecting the defendant with the illegal possession to the exclusion of such others.' (Emphasis supplied.) Miller v. State, 114 Ga.App. 57, 150 S.E.2d 353 and cits. 'Whether or not the defendant presented sufficient evidence to rebut the inference arising from the finding of the (contraband) in his place of business was a question for the jury.' Kent v. State, 105 Ga.App. 312, 314, 124 S.E.2d 296, 297, supra. Hence, whether every reasonably hypothesis except that of the guilt of the defendants had been excluded, was a question for the jury where the jury was properly instructed on circumstantial evidence. See Autrey v. State, 18 Ga.App. 13, 88 S.E. 715 and cits.; Townsend v. State, 127 Ga.App. 797, 799, 195 S.E.2d 474 and cits.
The evidence showed that defendant Horace Gee owned and operated the place of business (a service station and store) where almost 1000 concealed amphetamine pills were seized. He employed his brother, defendant Billy Gee, to help him run the business. Some of the pills were concealed inside machinery in the service station and the remainder inside an opening in a concrete block pillar in the building's basement, which Horace had had constructed and of which opening in the pillar he was aware. There were three keys to the locked basement; Horace had one, Billy had another (yet he denied to the arresting officers that he knew what lock it fitted), and the third was contended to have been available to Horace's employees generally (who were mostly, if not entirely, Horace's relatives). Horace testified that the other employees used the basement in connection with his 'septic tank business,' but no equipment incident to such a business was found therein by the arresting officers. Horace testified to having seen pills of this type (which he admitted ...
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...in the equal access instruction, when a case involves co-defendants, has been previously affirmed by this Court. See Gee v. State, 130 Ga.App. 634, 636(2), 204 S.E.2d 329 (1974). Moreover, any alleged confusion in the charge must be resolved against Copeland, inasmuch as the jury convicted ......
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...and possession of the contraband found therein. Compare Henderson v. State, 191 Ga.App. 275, 276(1a), 381 S.E.2d 423 and Gee v. State, 130 Ga.App. 634, 204 S.E.2d 329. The primary purpose of giving a tailored equal access instruction is the same in premises cases as in automobile cases; an ......
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...See, Autrey v. State, 18 Ga.App. 13, 88 S.E. 715; Townsend v. State, 127 Ga.App. 797, 799, 195 S.E.2d 474. See also, Gee v. State, 130 Ga.App. 634(1), 204 S.E.2d 329. The jury's verdict in this case was supported by the evidence and the trial court did not err in denying the motion for new ......
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