The evidence is insufficient, as a matter of law, to convict the defendant of possessing non-tax-paid whisky.
DECIDED SEPTEMBER 18, 1953.
The defendant was convicted of possessing non-tax-paid whisky. He filed a motion for new trial on the general grounds and assigned error on the judgment overruling it.
The evidence shows substantially: A county policeman testified for the State that he knew the defendant; that he saw the defendant on October 27, 1952 (the date alleged in the accusation), at the defendant's home; that he saw a car drive up to the defendant's home and stop; that he knew the person he saw drive up to the defendant's home to be a bootlegger; that the defendant came out and talked with the other person; that the witness and Mr. Brock, another county policeman who was with him, searched the defendant's car and the car of the other person; that they found no whisky in the cars; that the officers did not have a search warrant; that they left to procure a search warrant and after procuring a warrant they returned to the home of the defendant and searched his house; that they found no whisky in his house; that they went approximately twelve steps directly back of the defendant's house and found twelve gallons of non-tax-paid whisky in a pasteboard box near a garbage can and washpot; that the whisky was in gallon-capacity tin cans. The officers found several jugs and some cans in the defendant's house, similar to the cans found near the garbage can. On cross-examination, the same witness testified: that the whisky was found at the Lovelace Apartment Building; that there were about a half-dozen apartments there; that the officer did not remember exactly how many apartments; that in the back of the apartment house there was a courtyard; that there was one street back there and no partition or anything of the kind between the apartments or dividing the court; that witness did not notice any other garbage cans, but could not say there were no others in the courtyard; that there positively was no garbage can opposite the back door of each apartment; that witness did not know whether this particular garbage can near where the whisky was found belonged to the defendant or not; that there were other people living in the other units of the apartment building adjacent to the court; that witness did not know which garbage can and/or cans the other tenants used; that he supposed that the garbage can in question could have belonged to any of the tenants of the other apartments; that witness saw no one bring the whisky there; that witness was gone for the search warrant about twenty minutes, and when the officers returned, the defendant was not at home; that the defendant was picked up by the officers that night; that witness made no other search that night except as to the defendant's apartment and premises.
The witness further testified: "There are lots of duplexes there; there is a hedge beyond that; I don't know if there is an opening in the hedge you could go through. I didn't look to see. Each of these apartments there have back doors back of that open space. The back yard is grass, I believe. I suppose anybody could enter and go in that back yard."
The other State's witness, policeman Brock, testified: that he went to the home of the defendant with Mr. Ingram, the policeman hereinbefore mentioned. Witness and Ingram went through the house, found some empty cans, and could not tell what had been in them. Witness testified as to the location of the whisky and the location of the garbage can, and the washpot. On cross-examination, he testified: that the defendant lived in an apartment building; that there were six or eight apartment units; that "The yard I found the whisky in is the apartment yard" — it runs the length of the apartment. The same witness testified: that the garbage cans were in a row back of the apartment building; that all of the tenants had access to the back of the yard; that anyone could use it who wanted to do so; that the defendant was arrested because the garbage can next to the whisky was directly back of the rear of the defendant's apartment; that possibly there is an opening in the hedge where one could come through into the apartment courtyard, but the witness would not testify positively as to that point; that the duplex (beyond the hedge) was not nearer where the whisky was found than the apartment of the defendant; that the defendant's apartment was nearer where the whisky was found than any other apartment; and that other people were living in houses all along there. On recross-examination, the same witness testified that possibly a car could be driven through the hedge into the back yard of the apartment building; that there were no car tracks there; but that the whisky could have been brought by hand through the hedge to where it was found. Witness could not testify as to who had been using the washpot and garbage can, and could not tell from what direction the washpot and garbage can were approached; and testified that the washpot could have been used by anyone in the community, and that the garbage can could have belonged to anybody.
The defendant made a statement to this effect: that he had nothing to do with the whisky; that there were only three garbage drums there for the use of the six apartments and only one washpot, and that the washpot didn't belong to the defendant, but belonged to the lady next door; that all of the tenants used the back yard and the three garbage cans or drums. The defendant stated that the cans which the officers found in his house were used to mix oil and gas to use on a power saw; and that they were used to carry fuel out in the cans to the sawmill.
GARDNER, P. J.
We have set out the evidence somewhat in detail. It is insufficient as a matter of law to convict the defendant.
Judgment reversed. Townsend and Carlisle, JJ., concur.