The overruling of the certiorari was error.
DECIDED NOVEMBER 18, 1944.
John Cannon was tried in the criminal court of Fulton County on an accusation containing three counts. Count I charged that in said county on July 24, 1943, he "did engage in and sell, as a retail dealer, distilled spirits and alcohol, without first obtaining a license from the State Revenue Commissioner of the State of Georgia." Count 2 charged that on July 24, 1943, he possessed forty-eight half pints and three pints of whisky in Fulton County, and had not been licensed by the State Revenue Commissioner to sell whisky as a retail or wholesale dealer. Count 3 charged that on September 24, 1943, in said county, he sold malt beverages as a retail dealer, without first securing a license from the State Revenue Commissioner. On the trial, after the close of the State's evidence, counsel for the accused made a motion that count 2 be stricken, and that a verdict for the defendant be directed on counts 1 and 3. The court sustained the motion as to counts 2 and 3, but overruled it as to count 1. The jury returned a verdict of guilty on count 1, and of not guilty on counts 2 and 3. Subsequently the defendant's certiorari was overruled by a judge of the superior court and that judgment is assigned as error.
BROYLES, C. J. (After stating the foregoing facts.)
After the disposal of counts 2 and 3, the only charge before the court and jury was that the defendant had sold distilled spirits and alcohol as a retail dealer, without first obtaining a license from the State Revenue Commissioner. The evidence adduced to show the guilt of the accused on count 1 was wholly circumstantial, and was insufficient to exclude every reasonable hypothesis except that of his guilt, and it failed to show beyond a reasonable doubt that he had sold distilled spirits or alcohol. The cases of Thomas v. State, 65 Ga. App. 749 ( 16 S.E.2d 447), and Martin v. State, 68 Ga. App. 169 ( 22 S.E.2d 193), cited in behalf of the defendant in error, are distinguished by their facts from this case. The verdict was contrary to law and the evidence; and the overruling of the certiorari was error.
Judgment reversed. MacIntyre, J., concurs.
GARDNER, J., concurring specially:
Under the record the judgment should be reversed for another reason. Since the jury, based on the same evidence, found the defendant not guilty on count 2 for possessing liquors, and a verdict finding him guilty on count 1 for selling intoxicating liquors, the verdicts are repugnant and void as being inconsistent verdicts by the same jury based on the same evidence. Britt v. State, 36 Ga. App. 668 ( 137 S.E. 791), and cit.; Kuck v. State, 149 Ga. 191 ( 99 S.E. 622). I concur in the reversal for this additional reason.