Haney v. State, 31749.

• Decision Date: 01 October 1947
• Docket Number: No. 31749.,31749.
• Citation: 44 S.E.2d 492
• Parties: HANEY. v. STATE.
• Court: Georgia Court of Appeals

44 S.E.2d 492

HANEY.

v.STATE.

No. 31749.

Court of Appeals of Georgia, Division No. 2.

Oct 1, 1947.

Syllabus by the Court.

When whisky is found on the premises of the defendant, which are in his exclu sive control and possession as husband and head of the family, the inference arises that the possession is that of the defendant and is with his knowledge and consent, but the inference is a rebuttable one. Gray v. State, 66 Ga.App. 50(2), 16 S.E.2d 916; Dardarian v. State, 55 Ga.App. 286, 190 S.E. 48; Autrey v. State, 18 Ga.App. 13(2), 88 S.E. 715; Morgan v. State, 62 Ga.App. 493, 8 S.E.2d 694; Thomas v. State, 64 Ga. App. 315, 13 S.E.2d 92; Young v. State, 22 Ga.App. 111(2), 95 S.E. 478.

Error from Superior Court, Floyd County; C. H. Porter, Judge.

Hill Haney was convicted of possessing more than one quart of whisky in a dry county, and he brings error.

Reversed.

Hill Haney, defendant in error, was convicted of the offense of possessing more than one quart of whiskey in Floyd County, a "dry" county. His motion for a new trial as amended was overruled and he excepted.

The single ground of the amended motion for a new trial alleges that the court erred in charging the jury as follows: "I charge you, gentlemen, that the husband is head of the family, and as head of the family is in possession and control of the premises."

Evidence introduced at the trial was to the effect, that when the officers raided defendant's premises, the defendant was not present and his wife was arrested. That when defendant came to the jail to obtain bond for his wife, he, too, was arrested. The defendant in his statement testified that at the time he was working in Atlanta, that his brother-in-law was living in the house with him, and that he knew nothing about the whiskey until he received a telephone call that his wife was in jail.

M. G. Hicks, Charles Camp, and W. T. Maddox, all of Rome, for plaintiff in error.

E. J. Clower, Sol. Gen., of Rome, G. W. Langford, Asst. Sol. Gen., of La Fayette, and T. J. Espy, Jr., of Summerville, for defendant in error.

TOWNSEND, Judge (after stating the foregoing facts.)

The charge was error, in that it infers as a matter of law that if they found the defendant to be in control of the premises as head of the family, he would as a matter of fact be in control and possession of the whiskey, without further instructing the jury that there is a legal presumption that the whiskey was in the possession of the defendant, but the presumption is a rebuttable one. See Young v. The State, 22 Ga.App. 111(2).

When whiskey is found on the premises of the...