Miller v. State, 31153.

• Decision Date: 07 May 1946
• Docket Number: No. 31153.,31153.
• Citation: 38 S.E.2d 180
• Parties: MILLER. v. STATE.
• Court: Georgia Court of Appeals

38 S.E.2d 180

MILLER.

v.STATE.

No. 31153.

Court of Appeals of Georgia,

Division No. 1.

May 7, 1946.

Syllabus by the Court.

1. The admitted possession by the manager of a golf club of a locker in the locker room of the club raises a rebuttable presumption that the contents were in his possession, but does not forbid an ulterior inquiry as to the possession of any of the contents by other persons.

2. The requested charge was a hypothetical statement by way of instruction which was insufficient because it embraced but a part of the issues and assumed facts which were contested in the case and which should have been submitted to the jury for their determination.

3. Evidence which showed some logical connection with the offense charged, in that it was a circumstance which tended to show that the defendant possessed the whisky as charged and not his wife or some third person, was relevant.

4. "On the trial of a person charged with an offence, it is error to admit a part of his confession, and exclude the other part." Long v. State, 22 Ga. 40.

5. Ground three relates to a matter of proof which will probably not arise on the next trial, and we deem it unnecessary to consider it. The case being reversed on the special grounds, the general grounds will not be considered.

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

Elmo Miller was convicted of the unlawful possession of more than one quart of tax-paid whisky in a dry county, his motion for new trial was overruled, and he brings error.

Judgment reversed.

James Maddox and Graham Wright, both of Rome, for plaintiff in error.

Henderson Lanham, Sol. Gen., of Rome, for defendant in error.

MacINTYRE, Judge.

1. In special ground four complaint is made that the court charged the jury in part: "'You look to the evidence and the defendant's statement in this case and determine who was in possession of this locker, and determine whether or not the defendant beyond a reasonable doubt was in possession of this locker, and then determine from the evidence and the defendant's statement in the case beyond a reasonable doubt whether the locker contained the prohibited liquors named, described and referred to in the indictment, and if so, if the locker contained more than one quart of the liquors prohibited by law, and as charged in the indictment, if you find that the defendant beyond a reasonable doubt was in possession of the locker, then, I charge you that he would be in possession of the contents of the locker, and it is immaterial who was the owner of the whiskey, if you find he was in possession.'" The locker in question was in a certain golf club of which the defendant was manager. The possession of the locker in question by the defendant would raise the presumption that the contents of the locker were in the possession of the defendant, but this would be a rebuttable presumption. Isom v. State, 32 Ga.App. 75, 122 S.E. 722. But the language in the charge, " 'If you find that the defendant beyond a reasonable doubt was in possession of the locker, then, I charge you that he would be in possession of the contents of the locker, and it is immaterial who was the owner of the whiskey, if you find he was in possession, ' " is an instruction not that he would be presumed to be in possession of the contents, but that he would be in possession of the contents. (Italics ours.) The language italicized in the excerpt of the charge, it seems to us, was calculated to mislead and confuse the jury into thinking that if the defendant was in possession of the locker that it was mandatory for them to find that he was "in possession of the contents, " and forbade any ulterior inquiry as to the possession of any of the contents by any other person if the jury determined the locker itself was in possession of the defendant. The possession of the locker only raised a rebuttable presumption and not a conclusive one relative to its contents. We think this language in the charge was misleading and hurtful, and that a new trial should be granted.

2. Special ground five. The defendant excepts to the judge's refusal to charge, " 'I charge you that if you find that one bottle of whiskey which the State says was found was the property of the wife of the defendant, that the defendant would not be guilty.'" The parties have the right "which we would not abridge, to have a principle of law springing from the testimony in the case, and pertinent to the issue tried, given by the Court; but they have no right to single out and specify a fact or two in testimony, and to ask the Judge to charge the jury that if they are satisfied such and such facts exist, or have been proven to their satisfaction, that, then, they should find so and so." Wright v. Georgia R. R. & Banking Co., 34 Ga. 330, 338. It was the jury's right in this case to determine from all the evidence the guilt or innocence of the accused. The requested charge was a hypothetical statement by way of instruction which was insufficient because it embraced but a part of the issues and assumed facts which were contested in the case and which should have been submitted to the jury for their determination. Southern Ry. Co. v....