Harper v. State
| Decision Date | 22 January 1952 |
| Docket Number | No. 33801,No. 2,33801,2 |
| Citation | 69 S.E.2d 102,85 Ga.App. 252 |
| Parties | HARPER v. STATE |
| Court | Georgia Court of Appeals |
Syllabus by the Court.
1. Where liquor is found on premises occupied by the defendant, it is not sufficient to support a conviction if it affirmatively appears from the evidence that other persons than the defendant and members of his immediate family of which he is the head had equal opportunity with the defendant to commit the crime.
2. A witness may be impeached by contradictory statements previously made by him as to matters relevant to his testimony, the effect of this evidence to be determined by the jury.
3. The presumption of law that whisky found in the home belongs to the head of the house is not sufficient to support a verdict of guilty where the defendant's occupancy of the premises is maintained by him and his family jointly with others.
4. One of the two special assignments of error is considered with the general grounds, and the other one is not passed upon since it is not likely to occur upon another trial.
The undisputed evidence discloses that the defendant lived in a five room house located on a farm. The defendant's family consisting of his wife and a 17 year old stepson lived with him. His mother who owned the property also lived in this house. The mother had a part of the land farmed in her own behalf and the defendant farmed other parts of the land. The mother hired one Columbus Self to work on the premises and he received as payment therefor $1.50 per day and his board. He also occupied the house with the mother, the defendant, and the family of the latter. There was a tenant house on the premises which was occupied by a tenant of the mother. On February 8th, 1951, the officers searched these premises and found three half-gallon jars of untaxpaid whisky, one jar in a closet of the hall of the house, and two jars hidden in the corn in the corn crib to which all persons on the premises had access. The mother, the stepson and the hired man were at home when the search was made. After the whisky was found, but before the officers left, the defendant came home. When the whisky located in the house was found the hired man stated it was his whisky and that he had put it there. A large quantity of fruit jars, some containing the odor of whisky, was found in the house, the yard and the adjacent field. Other officers had on several occasions over a period of years searched the same premises, and had on each occasion found a large quantity of fruit jars, some containing the odor of whisky. Some of these jars on the previous occasions may have been the same as some of those found in this case. The only search revealing whisky was the one now under consideration.
Although in dispute, the evidence authorized the jury to find that when the officers found the whisky in the house, the hired man stated that if any other whisky was found on the premises he knew nothing of it. The officer then proceeded to the corn crib and found the whisky that was concealed there. The hired man again stated he had no knowledge of it. However, when the defendant came home he said in the presence of the officers to the hired man, 'If there is any liquor here it is yours, Columbus, and you tell the officers it is yours.' Whereupon Self replied, The hired man testified as a witness for the defendant that all the whisky was his and detailed the circumstances under which he procured and concealed it.
Upon conviction the defendant filed a motion for a new trial which was later amended by adding two special grounds. The judgment of the trial court overruling this motion is assigned as error.
J. T. Sisk, Elberton, for plaintiff in error.
Carey Skelton, Sol. Gen., Hartwell, for defendant in error.
TOWNSEND, Judge (after stating the foregoing facts.)
1. A careful examination of the evidence discloses that the mother of the defendant and Columbus Self had equal opportunity with the defendant to possess the liquor found in the hallway of the house; also, that the mother of the defendant, Columbus Self, and the tenant of the mother of the defendant had equal opportunity with the defendant to possess the liquor found in the corn crib.
2. The jury was authorized to disregard the testimony of the hired man to the effect that all the liquor found on the premises was his liquor and that the defendant was in no way connected with it because of a prior contradictory statement he had made to the officers. See Code, § 38-1803. When his testimony is thus disregarded,...
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Sellers v. State
...The presumption is also rebutted where the evidence shows other persons had an equal opportunity to commit the crime. Harper v. State, 85 Ga.App. 252, 69 S.E.2d 102. The evidence adduced by the State raised the presumption that the liquor belonged to the defendant but his sworn testimony (t......
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Neal v. State
...affirmatively appears from the evidence that persons other than the defendant had equal opportunity to commit the crime. Harper v. State, 85 Ga.App. 252, 69 S.E.2d 102; Sommerville v. State, 66 Ga.App. 61, 17 S.E.2d 82; Savage v. State, 28 Ga.App. 543, 112 S.E. 523; Toney v. State, 30 Ga.Ap......
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Williams v. State
...lawn at that time, so there was 'equal opportunity' for others to commit the offense. The late Judge Townsend in Harper v. State, 85 Ga.App. 252, 255, 69 S.E.2d 102, lists nine citations on this subject in holding that even the presumption of law that whiskey found in the home belongs to th......
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Moreland v. State, s. 50022 and 50023
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