ZETTEROWER v. STATE, 85 Ga. App. 708 (1952)


70 S.E.2d 43

ZETTEROWER v. THE STATE.

33980.Court of Appeals of Georgia.
DECIDED MARCH 19, 1952.

Where, as here, the defendant on trial for possessing whisky admits that whisky found by the officers belonged to him, this raises a legal presumption that he knowingly had, possessed, or controlled it. Although this presumption is rebuttable, where nothing more is known or stated, such admission together with this legal presumption constitutes the essential elements of the offense.

DECIDED MARCH 19, 1952.
Violating liquor law; from Bulloch Superior Court — Judge Renfroe. December 20, 1951.

Page 709

Charles Zetterower was indicted, tried, and convicted in the Superior Court of Bulloch County for possessing whisky. The evidence was in substance: that certain State revenue agents and police officers raided a shack known as Rushing Dam, where soft drinks, gum, and other articles were offered for sale; that one pint of stamp-paid whisky was found in the little store, one in the back room, and eight pints in a sack in the pond ten or twelve feet from the back door; that there were tracks from the door to the pond; that there were several empty glasses in the shack with the odor of whisky in them; that the witnesses did not know who owned the place, but the defendant was operating it; that there was a bed in the back room; that they did not see the defendant selling anything; that, after the witnesses found the whisky, the defendant stated that “there wasn’t any use for us to search any more, he says, `That’s all I’ve got.'”

The defendant made a statement denying his guilt; denied making the confession; and stated that he did not run the place, but did occasionally sleep in the back room, and that the whisky in the pond might have been put there by any number of people.

After conviction the defendant filed a motion for new trial on the general grounds only, and the exception is to the overruling of this motion.

William J. Neville, Ralph U. Bacon, for plaintiff in error.

Walton Usher, Solicitor-General, contra.

TOWNSEND, J. (After stating the foregoing facts.)

Although denied by the defendant, the jury was authorized to find that he admitted the possession of the whisky. Bulloch County being dry — of which fact this court takes judicial notice (see Leonard v State, 204 Ga. 465 (4a), 50 S.E.2d 212) — the quantity of whisky was in violation of law. In Brown v. State, 74 Ga. App. 880
(3, 4, 5) (41 S.E.2d 912), it was held: “Where the defendant admitted that the whisky belonged to him without saying anything more, this raised a legal presumption that he knowingly possessed, had or controlled it. This presumption was rebuttable. Without anything more known or stated, such admission of specific facts, together with the legal presumption deemed to exist, constitute all the essential elements of the offense of having, controlling or possessing the prohibited liquor. When the defendant admitted that `the whisky was his’ or belonged to

Page 710

him without stating anything more, this was the legal equivalent of an admission that he was in the possession of it, which would be a confession that he possessed the whisky as charged.” The statement of the defendant here to the arresting officers, after they recovered the sack of whisky from the pond, that they need not look further as that was all he had, amounted to a confession and, taken in connection with the other circumstances herein set out, was sufficient to authorize the jury to return a verdict of guilty. Wren v. State, 57 Ga. App. 641 (196 S.E. 146) Smith v. State, 40 Ga. App. 622 (150 S.E. 923); Hogan v State, 32 Ga. App. 25 (122 S.E. 637).

The trial court did not err in overruling the motion for a new trial.

Judgment affirmed. Gardner, P. J., and Carlisle. J., concur.