Lewis v. State

• Court: Georgia Court of Appeals
• Writing for the Court: RUSSELL, J.
• Citation: Lewis v. State, 6 Ga.App. 205, 64 S.E. 701 (Ga. App. 1909)
• Decision Date: 18 May 1909
• Docket Number: 1,746.
• Parties: LEWIS v. STATE.

64 S.E. 701

6 Ga.App. 205

LEWIS v. STATE.

No. 1,746.

Court of Appeals of Georgia

May 18, 1909

Syllabus by the Court.

In a criminal case, where the guilt of the defendant is dependent wholly upon circumstantial evidence, the jury should be instructed that, if the proved facts are consistent with innocence, the defendant is entitled to an acquittal.

[Ed Note.-For other cases, see Criminal Law, Cent. Dig. § 1887; Dec. Dig. § 784. ^[*]]

Where one is charged with the offense of keeping on hand at his place of business alcoholic, spirituous, malt, or intoxicating liquors prohibited by law, and intoxicating liquors are shown to have been found at his place of business, such evidence is sufficient to support the inference that the forbidden liquors were kept by the owner of the place of business, but such inference is not conclusive, for it may be shown, among other things, that the forbidden liquors were not the property of the accused, that they had been temporarily deposited in his place of business by some other person, and that the owner of the place of business had no knowledge of their presence or existence.

[Ed Note.-For other cases, see Intoxicating Liquors, Cent. Dig §§ 293, 295; Dec. Dig. § 233. ^[*]]

Error from City Court of Oglethorpe; R. L. Greer, Judge.

Noah Lewis was convicted of keeping intoxicating liquors at his place of business, and brings error. Reversed.

Hixon & Greer and L. J. Blalock, for plaintiff in error.

Jule Felton, for the State.

RUSSELL J.

Lewis was tried and convicted of the offense of keeping on hand at his place of business, to wit, his barber shop, "certain alcoholic, spirituous, malt, or intoxicating liquors, or intoxicating bitters, or other drinks, which, if drunk to excess, will produce intoxication." He excepts to the judgment overruling his motion for new trial.

The evidence for the state showed that at about 10 o'clock in the morning a policeman entered the defendant's barber shop, and found in a room formerly used as a bathroom four quart bottles of whisky. The defendant had charge of this former bathroom, and a door led from it into his barber shop proper. The evidence in behalf of the defendant disclosed that the bathroom had a window shutter on the outside, but no door except the one opening into the barber shop; and this door was open at the time the whisky was found. The shop is a public shop, in which people are coming in and going out all of the time, getting hair cut and being shaved. The defendant contended that some one else put the whisky into his shop the night before, and stated that the panes of glass had fallen out of the window, and that for anybody to get in there was nothing to do but raise the window, which was not locked or fastened. The evidence shows that the shop had been searched before for whisky, but none had ever been found there, and that the four bottles of whisky found on this occasion were all full.

We think the evidence was sufficient to raise the inference that the defendant was keeping the whisky in question on hand at his place of business, and, for that reason, was sufficient to support conviction. Express exception is taken, however to the fact that the court failed to charge the jury the law upon the subject of circumstantial evidence, inasmuch as the evidence in the case at bar was entirely circumstantial, and not wholly inconsistent with the hypothesis that the liquor found in the defendant's possession might have been put in his place of business by another without his knowledge or consent. As ruled by this court in Riley v. State, 1 Ga.App. 651, 57 S.E. 1031, and Glaze v. State, 2 Ga.App. 709, 58 S.E. 1126, and by the Supreme Court in Hamilton v. State, 96 Ga. 301, 22 S.E. 528, and Toler v. State, 107 Ga. 682, 33 S.E. 629, where the guilt of the defendant depends entirely upon circumstantial evidence, the attention of the jury should be called to the rule of law embodied in section 984 of the Penal Code of 1895, and the jury should be told in appropriate language that to warrant a conviction on...