Hendrix v. State

• Decision Date: 03 July 1919
• Docket Number: 10390.
• Citation: Hendrix v. State, 24 Ga.App. 56, 100 S.E. 55 (Ga. App. 1919)
• Parties: HENDRIX v. STATE.
• Court: Georgia Court of Appeals

100 S.E. 55

24 Ga.App. 56

HENDRIX v. STATE.

No. 10390.

Court of Appeals of Georgia, Second Division

July 3, 1919

Syllabus by the Court.

Where one is indicted for having, controlling, and possessing prohibited liquors, and the evidence relied upon to convict is the finding of such liquors in the defendant's residence, it is not necessarily a complete defense to such charge that the defendant was not at his place of residence at the time such liquors were found, and had not been there since the time such liquors were placed in his residence. One may have, control, or possess liquor in violation of law, and at no time be present at the place of storage, or have such liquor in his physical possession. The trial judge therefore, did not err in failing to charge the law relative to alibi as a defense, especially since the defendant made no request for such a charge.

Conceding that the defendant's conviction depended entirely upon circumstantial evidence, the failure of the judge, in the absence of a timely written request, to charge the jury the precise language of section 1010 of the Penal Code, was not error. The judge presented in a concrete statement to the jury the only possible hypothesis arising from the evidence or from the defendant's statement which was consistent with his innocence, and instructed the jury that if they found this hypothesis to be true the defendant should be acquitted. The principle of the law of circumstantial evidence was sufficiently presented by these instructions.

The other special ground of the motion for a new trial, not being insisted upon either in the oral argument or in the brief of counsel for the plaintiff in error, will be treated as abandoned.

The evidence amply authorized the verdict, and the court did not err in refusing to grant a new trial.

Stephens J., dissenting in part.

Error from Superior Court, Chatham County; P. W. Meldrim, Judge.

P. M Hendrix was convicted of unlawfully having, possessing, and controlling spirituous liquors, his motion for a new trial was denied, and he brings error. Affirmed.

Robt. L. Colding, of Savannah, for plaintiff in error.

Walter C. Hartridge, Sol. Gen., of Savannah, for the State.

STEPHENS J.

The opinion of the majority of the court is as follows:

"The second headnote alone needs elaboration. The defendant was tried and convicted of unlawfully having, controlling, and possessing spirituous liquors. The undisputed evidence showed that 188 pints of rye whisky were found in the defendant's private residence. When the whisky was found he was absent, but his wife was present in the house. The defendant and his wife resided in the lower apartment of an apartment house, and the evidence does not disclose that any one else lived there with them. A portion of this whisky was found in five suit cases. There were also three empty suit cases, and the remainder of the whisky was found standing upon the floor of the bathroom and upon the floor between the bathroom and the bedrooms. The whisky was found about 6:45 a. m. on the morning of October 7, 1918. A witness for the state testified that about 5 o'clock on the same morning he saw the defendant unloading upon the front porch of his residence the same suit cases found in the house. It is true that other evidence showed that at that hour the defendant was locked up in the police station. However, the jury were authorized to believe the testimony of that witness, or to believe that he was mistaken as to the time that he saw the defendant unloading the suit cases. But, even if the testimony of this witness be entirely eliminated, the remaining undisputed evidence in the case, as to the finding of 188 pints of whisky in the defendant's private residence, was sufficient to exclude every other reasonable hypothesis save that of the defendant's guilt.

In this state the husband is recognized by law as the head of his family, and, where he and his wife reside together, the legal presumption is that the house and all the household effects, including any intoxicating liquors, belong to the husband as the head of the family. This presumption, of course, is rebuttable. Young v. State, 22 Ga.App. 111, 95 S.E. 478, and authorities cited. In the instant case there was no attempt, either by the introduction of evidence or by the defendant's statement, to rebut this presumption. It will be borne in mind that the defendant was not charged with or convicted of placing the whisky upon his front porch at 5 o'clock in the morning, or at any other time; he was only charged with, and convicted of, having, controlling, and possessing whisky. Upon the trial the defendant introduced no evidence, and his entire statement was as follows: 'Gentlemen, the statement that Mr. Coleman made is absolutely false. I was not at home at all that night, and know nothing at all about the whisky. Mr. Coleman claims that he saw me unloading the whisky at the house at 5 o'clock, at which time Lieut. Bentley will tell you I was under arrest at the police station. I think Lieut. Evers and Detective Murphy and Mr. Bentley will tell you that they would not believe that man on his oath. I know absolutely nothing about it at all.' Eliminating the evidence of the state's witness Coleman (who testified to seeing the defendant unload the suit cases upon his porch), which was not necessary to convict the defendant (in view of the undisputed evidence as to the finding of the whisky in the defendant's residence), the only contention made in the defendant's statement, besides the immaterial statement that he was not at home that night, was that he knew nothing about the whisky being in his residence. In other words, the only hypothesis favorable to the accused, raised by the evidence and by the defendant's statement, was that he did not have, control, or possess the whisky found in his house. Upon this issue the court charged as follows: 'I charge you that if the proof satisfies you, beyond a reasonable doubt, that this defendant either had or procured or possessed spirituous liquors, or that he procured, commanded, aided, or abetted, or knowingly participated in having, controlling, or possessing spirituous liquors, he would be guilty of the crime charged. On the other hand, if he did not knowingly participate in having it, if he did not aid, or abet, or procure in having it, or if he did not have, control, or possess them, of course he would not be guilty. * * * The issue for you to determine in this case is whether this defendant did have, or did he control, or did he possess, spirituous liquors. If, under the rules given you in charge, you come to the conclusion that he did have, or that he did control, or did possess, you should find the defendant guilty. If you do not so believe, it will be equally your duty to find him not guilty.'

In Mangum v. State, 5 Ga.App. 445, 63 S.E. 543, paragraph 2 of the decision is as follows: 'While in every criminal case, where it is sought to show the guilt of the defendant by circumstantial evidence alone, the jury should be instructed and cautioned that he should not be convicted on circumstantial evidence, unless the proven facts exclude every possible reasonable hypothesis save the guilt of the defendant, still it is immaterial what language is employed to convey this instruction. If all possible hypotheses arising from the circumstantial evidence which are favorable to the defendant be presented in concrete statement to the jury, and the jury are told that if they believe any one of these hypotheses the defendant should be acquitted, the principle above referred to would be sufficiently presented. And where, as in the present case, only two inferences can be drawn from the evidence--the one of innocence, and the other of guilt--and the hypothesis consistent with innocence is fully and fairly stated to the jury, and the jury are instructed that if they are satisfied that the

hypothesis consistent with innocence is true, or if they have a reasonable doubt as to its truth, the defendant should be acquitted, the rule above stated is substantially complied with.' See, also, to the same effect, Barrow v. State, 80 Ga. 191, 5 S.E. 64; Richards v. State, 102 Ga. 569, 27 S.E. 726; Jones v. State, 105 Ga. 649, 31 S.E. 574; Bush v. State, 23 Ga.App. 126, 97 S.E. 554; Reynolds v. State, 23 Ga.App. 369, 98 S.E. 246; Davis v. State (No. 10383, June 27, 1919), 99 S.E. 50. In the instant case the court also sufficiently charged upon the presumption of the defendant's innocence, and fully instructed the jury upon the subjects of reasonable doubt, and of the defendant's statement. It is our opinion that the court sufficiently presented in concrete form the sole hypothesis, favorable to the accused, arising from the evidence or from the defendant's statement. Under the undisputed evidence in this case, leaving out entirely the evidence of the witness Coleman, the conviction of the defendant was clearly and convincingly proved, and the charge of the court as to the amount and character of proof requisite to the defendant's conviction was such as to leave no room for doubt that the verdict would have been the same, even if the court had, in the precise terms of the statute, stated to the jury that in order to warrant a verdict of guilty the evidence must not only be consistent with the guilt of the accused, but inconsistent with every other reasonable hypothesis. Toler v. State, 107 Ga. 682, 33 S.E. 629."

Speaking for myself alone, I concur in the first headnote, but dissent from the ruling announced in the second headnote. There is no direct evidence that defendant had, controlled,...