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48664. NEAL v. THE STATE. Judge. Two questions presented Clark, are appeal: (1) Do the facts make out a case of possession” "constructive (2) contraband drugs sufficient conviction; to sustain a did judge the trial err in charging the conviction carried with it a sentence of not less than year? one importance of answering this latter question is shown in the district attorney’s for request this court to rule on this phase for the enlightenment of our judges trial regardless decision on the guilt phase.
Ironical indeed are the facts out of which this case had its
inception: during a Sunday afternoon visit to the county jail by some teen-agers a deputy sheriff observed from post his interior that a young girl was on lying pavement in the parking lot to the rear of an automobile. Going outside to the location for good Samaritan purpose assistance, the officer noted the young female seemed intoxicated. There were two occupants in parked Appellant car. was vomiting as he leaned out of the left front door on the driver’s side. The occupant other was a young male asleep on the rear seat. He also seemed to be in a drunken condition and when he got out of the vehicle the deputy saw two cigarettes rolled on the back seat. The officer saw a half smoked marijuana cigarette in the middle of the front seat. He also found two capsules on the front, floorboard in the being one on the driver’s side and the other on passenger Later, side. a bag of marijuana was found in the rear seat and also a brown paper bag containing marijuana was found on ground passenger side. driver’s door rear of charges. Appellant One was tried on possession reading possession, "was that such this accusation occupant. along sole The other was for rear seat with” the drug, secobarbital, a which was pills found on the front floorboard. of the two nature *2 teen-agers developed who had there five were The evidence morning. Sunday occupied that a automobile borrowed group during Appellant a a visit to had the driver for the been bootlegger. becoming he the intoxicated had After beer driving purpose the automobile to his for the of wheel brother passengers county jail permit make a visit. to two of the to to the The various respective positions passengers with reference to their testified girl during young and
in the car the ride. The any pills passengers they or the stated had seen one of answering marijuana. excused from The brother was defendant’s any questions tend incriminate brother. The which would to his pleaded occupant acknowledged guilty to he had rear seat possession marijuana the car. of the found in jury appellant guilty on both counts the court After the found the sentencing phase during charged jury that the the the imprisonment punishment possession "for for of secobarbital is year, years, period or of not than one nor more than two a less up imprisonment $2,000, a both.” fine of to either fine or or a (T.144). right jury Additionally, to the court included the of the jury punishment as a misdemeanor. The recommend for imposing possession a of for of returned a verdict fine $300 year possession marijuana of and a sentence of one punishment secobarbital with a misdemeanor recommendation. adopted by the and a was court recommendation imposed. twelve-month sentence was argues Appellant persons had that since other access drugs, ruling State, that under the of v. Ga. Gee 480); Ivey State, and 121) the conviction Reed v. applicable holdings be Those are not here. should reversed. present in the was not each three cases accused premises belonging time to defendant at the entirely Thus, in those found. the evidence was circumstantial hypothesis save and exclude cases failed to appellant guilt. personally bar, In the case at cigarette capsules seat, front area where half-smoked and person were In fact was the then the front only found. he of the car.
2. Concerning possession the trial judge instructed that
"The act possessing marijuana may of or secobarbital personal by possession either or constructive and possession control. be sole If possession may joint. you Constructive or find in possession the defendant was and control of the premises and surroundings immediate in or about found, which or marijuana secobarbital was if such found, you presume were would be authorized defendant was in possession marijuana and secobarbital and However, convict him. this presumption may be rebutted defendant satisfactory explanation his if you find in possession, he was consistent with his innocence your opinion. you If find some or persons other than the placed marijuana defendant and in question secobarbital on premises surroundings immediate of the defendant in his possession and and you control find he in possession and control and that the defendant allowed knowingly such secobarbital premises remain such immediate surroundings irrespective who actually owned the *3 secobarbital, and put there, or who it you would be (T. 132). 131, to authorized convict the defendant.” appellant’s objection to this was limited to the portion on "constructive possession.” This is in transcript stated at page 135 "I thusly: object, Honor, would Your to the charge on possession. constructive There none and I would object to that. He was not in constructive possession of the car. It was girl testified that lent it had to someone else and he did not drive it and there said he deputy was completely outside. I just do see where there could be any constructive possession.”
Although the automobile not borrowed by accused but by
another party member of his defendant was when the car was obtained from its owner who knew defendant was to drive it. Actually, defendant was the driver from the moment car was obtained until the group bootlegger’s reached the place. (T. 53). Then, when defendant intoxicated, had become his brother drove from bootlegger’s establishment jail to the with 112). sitting 104, 111, defendant front (p. seat. As to position defendant’s in the at time officials, contraband was first observed by law sheriff deputy
711 time, car, testified "At I that open noticed on the driver’s side of the sitting the door was leaning and there was a male white in the seat 7). (T. vomiting.” out the door The individual referred transcript following to was the defendant. The shows the subsequent interrogation: you "Now, do think that he was in sir, control of this and the A car situation there? Yes because he sitting inwas the driver’s side of the car. If he would have been up, he would have been under the wheel and his feet would have pills leaning But, been there down where were. he was out laying vomiting. and, with his head and down he was Q the fact seat, that Ronnie Neal was in the driver’s did that mean anything you? driving sir, A Yes I concluded that he was it. anything you? Well, and did that Q mean A as fár as I was car, concerned it meant that it was his and whatever was found possession. right. Anywhere in the car was in his AllQ you yes, particularly Well, car was what meant? A in the front Well, Q seat. what Well, about the back seat? A it stands to put reason that if there, he didn’t it it was there his (T. 33). permission.” 32, testimony, appears charge From this and other that the adapted principles evidence and accord with the stated (197 App. 70); State, in Cheatham v. 57 Ga. 858 SE2d Weeks v. (6) (18 App. 503); Griggs State, 66 State, Ga. 561 SE2d v. (c) App. 438); App. State, Ga. (61 SE2d Leach v. 82 Ga. 572); App. State, Morris Ga. 361). 263, 264 Patterson v. 53 The essence possession personal property of those decisions which involve supra, page as stated Cheatham v. at is that may personal although "Possession exclusive, it is the joint possession persons.” of two or more See also the various "possession” definitions of the word as in 72 CJS where interchangeably the author writes that the word ". . . is used possession, describe actual and constructive which say often so shade into one another that it is difficult to where begins.” one ends and 38 the other See also Lee v. (2) (189 *4 Appellant argues requirements proved 3. that the facts here failed to meet the §
of Code 38-109 to the effect that "To warrant a evidence, conviction on circumstantial facts shall not only hypothesis guilt, be consistent with the but shall exclude every hypothesis guilt other reasonable save that of the of the accused.” In 529, Townsend v. 115
788) we said: '"It was not necessary show that it was impossible for the offense else, to have been by committed anybody or that not, it might by bare have possibility, been done It by another. is sufficient to show to a moral certainty that was the prisoner.’ 'Whether or not in a given case circumstances are [cits.] sufficient to exclude hypothesis guilt save the accused, is primarily question for determination by so, jury. This of is necessity for we have legal no yardstick by which we can ordinarily determine what in a given case is a reasonable hypothesis, save the opinion of twelve upright and intelligent Smith v. jurors.’ 384, 56 Ga. App.
647).” 4. The court’s charge as to the minimum imprisonment period was
error as there is no minimum period prescribed in the statute creating crime involving secobarbital pills. undertaking to instruct the jury punishment as to being "not less than year” one the able trial judge deduced this from 26-401 § (e) of our Criminal Code. There a felony defined as "a crime punishable death, or by imprisonment for life, imprisonment for more than 12 months.” But the fact that such definition period relates to a imprisonment does not control legislative declaration as to the for penalty Thus, each crime. a review of punishment provisions contained in the Criminal Code of Georgia for various crimes invariably states a minimum and a maximum such as "for not less than one year nor more than years.” five Accordingly the absence of any minimum period in the instant statute is significant as to the legislative intention concerning punishment specific crime. pertinent portion (Ga. Georgia Drug Abuse Control Act 377) 296, L. pp. states that a violator of the provisions of Chapter 79A-9 relating to depressant and stimulant drugs "shall be guilty shall, of a felony, and upon conviction, be punished by a fine of not more $2,000, than or imprisonment penitentiary for a period not to exceed years, or by both such (Code 79A-9915). fine and imprisonment: ...” Ann. "Statutes § prescribing punishment are strictly construed... They never are against construed an accused or a convicted beyond their literal and obvious meaning.” 558, 559, 24B CJS § Additionally, our Supreme Court said in Everett, Matthews v. 148) that a criminal statute "must be construed strictly against the State and liberally favor of the prisoner, within reason.” See also Curtis v. 102 Ga. App.
713 (118 264). application 790 SE2d The of such rules of construction intended Assembly makes clear that the General to this statute offense would with particular carry the conviction of conviction, to a such as penalties applicable felony it the civil public franchise and denial of office. As deprivation voting of the permit jury the manifest intention is to punishment, to the both, fine imprisonment either a fine or or but such impose $2,000 exceeding imprisonment not and the any can be amount not period exceeding years. Compare can be for of time any 923) (194 State, Fowler v. 884 jury 229 Ga. SE2d where the imposed drug a sentence on a conviction. 30-day felony must sentencing The case therefore be reversed as to the remanded to the trial court for consideration of this' only. issue Smith, (182 Johnson v. Almond v. 227 Ga. 611 App. reversed in with direction that a Judgment part; part, affirmed Bell, trial only. new as to the the sentence granted imposition of J., Hall, J., Eberhardt, J., Deen, Stolz, JJ., P. P. Quillian C. Pannell, J., Evans, J., concur. in the judgment only. concurs dissents. January 1974.
Submitted October Decided Zell, for appellant. Glenn Ison,
William H. Attorney, Bradley, District J. W. for appellee. Judge, dissenting. enough Was there evidence to Evans, convict defendant of illegal drugs? Defendant was found on the of an front seat automobile in an intoxicated condition; wheel; he was under the steering did not own or car; control had not driven it to its parked position, but was passenger. the car as a The car was merely borrowed another person. got The driver and others out of the car and left it. A partly cigarette smoked was found on the front seat adjacent defendant, containing and one capsule secobarbital was found side, on the floorboard of the car on the driver’s and another capsule was found on the floorboard on passenger’s side. He holding cigarette, was not nor was it him. In this touching situation, does the circumstantial evidence warrant a conviction? conviction, affirms the and cites several majority opinion cases, none of which To the in one supports opinion. contrary, Watson v. cases, wit, cited 93 Ga. 832), the "If a following charge approved, is to wit: person is an in his driving or has an automobile
possession, custody presumed control, all in that automobile is supplied.) possession. (Emphasis his, Thus, . .” to be and in his — presumed that the driver and/or control of the car — passenger presumed to and have not the defendant own proven control of all that was in the car. In the cited case it was containing liquor a that the defendant had box companion and, course, it; him to run with to that and instructed possession, way sufficient to convict as to but is in no similar to case. the facts 70), cited Cheatham also question majority, the recently the automobile in was shown to have been *6 by placed others, course, stolen defendant and of that presumptively him and them of the car and its (150 438), App. Griggs State, 40 contents. v. Ga. 542 SE also cited by majority, whiskey resting the was shown to be between the legs repeat, emphasize, it when was found. We of defendant by majority not a one these cases cited has which are of facts vaguely even similar in the case now under facts authority is consideration. None a conviction of the defendant on circumstantial evidence. rigid very requirements
A discussion of the as to conviction Ivey State, 821, circumstantial (177 found in evidence is v. 226 Ga. 824 702), liquor SE2d to wit: ". . . the rule is otherwise where premises occupied by appears found on it accused and that persons other than the accused and members of his immediate equal opportunity household of he which is the head had with him (107 App. State, to commit the crime.” Thomas v. 99 Ga. 25 SE2d (166 382). 687); App. Again, State, Morris v. 119 Ga. 157 SE2d (194 App. 121), State, Reed v. 127 Ga. 459 SE2d it is stated: again, "Here since the evidence shows that there were others than equal opportunity the defendant who had for which he is to commit the offense charged, the circumstantial evidence is insufficient Again, App. State, to sustain a conviction.” in Gee v. 121 Ga. (1) (172 480), SE2d it is stated: "It is enumerated as error that the support agree. verdict of the is without evidence to it. We Merely finding premises occupied by a defendant support affirmatively appears is not sufficient to a if it conviction persons from the evidence that other than the defendant had opportunity (69 Harper App. State, to commit the crime. v. 85 Ga. 252 82); 102); (17 App. State, Summerville v. 66 Ga. 61 (112 Savage App. 523); Toney v. SE App. 30 Ga. SE To warrant a conviction on evidence, proved facts shall not only circumstantial guilt, but shall exclude hypothesis every consistent with guilt other reasonable save that of the of the accused.’ hypothesis Code 38-109. And see Eads v. 42 Ga. § 382).” State, Morris v. case,
In the there were two presumptions actively First, it operating presumed in favor of defendant.
contents of the car were owned and controlled the owner and/or driver, Next, and defendant neither owner nor driver. presumed defendant was to be innocent of of law any violation proven until a guilty beyond reasonable doubt. The state relied on evidence, the Gee circumstantial but as was so held in forcefully case, supra: "... 'To warrant conviction on circumstantial evidence, facts shall proved only not be consistent with the hypothesis guilt, but shall exclude other every reasonable hypothesis guilt save that of the of the accused.’ Code 38-109.” § It was not for the state to only necessary prove that defendant may could have have committed the crime, go but had to long step "excluding further of other hypothesis,” wit, that no other than the defendant was owner and/or in control of the in this case. That the state has failed to do. statute, wit, 38-109, Code recites that plainly where § conviction,
circumstantial evidence is relied on for a facts shall only hypothesis be consistent with the guilt, *7 but shall exclude other hypothesis ”... save that guilt of the accused.” what Exactly language does this mean? It means that unless there is direct evidence to show defendant facts do two guilty, conviction cannot stand unless proved the things, proved to wit: 1. The facts must be consistent with the and in addition. 2. guilt, defendant’s facts shall exclude (or every other reasonable hypothesis save that theory) the guilt the accused. What other reasonable hypothesis, or theory, exists in the perpetrator case as to the actual of the crime? Who else could have committed it besides defendant? driver or owner the Why, so, of the car could have done as the especially presumes law that ” his, "all in that automobile is presumed and in his possession. Watson v.
Did the owner and/or the driver have the opportunity with passenger to commit the crime? any Was there evidence to suggest that they None, could not have the committed crime? absolutely point defendant, none! Then the why guilty finger at the who was was who drugs, passenger, the control to own or reoí presumed the driver intoxicated, he was not as in the car while sitting or control evidence to own any not shown owner, and who the on his drugs have evidence not shown it, and who he was arrested? when the trial court reversal of majority’s from I further dissent charge as I the sentence. believe as to charge his on erroneous, the jury Further, charge were even if correct. misdemeanor, which as for a punished he be recommended 12 months. to serve followed, him and sentenced judge trial the entire a reversal of requires However, in Division the error the sentence. merely and not judgment 48849. ENNIS v. THE STATE. Judge. The defendant was arrested in Lamar County on the
Deen, of a film discovery cartridge containing less than an ounce of top of a china house, cabinet in his father’s a pipe useful in smoking this in an drug, belonging his mother. These items were turned up on a search of the premises with warrant. The evidence established Decatur, parents lived Georgia, where a bedroom was set aside for the defendant’s use and where he frequently stayed, while staying also at times in a Atlanta, friend’s house Fulton County, having and also unrestricted permission to stay Lamar County house where the search was made. This latter was time; vacant much of the earlier year rented, had been and several weeks before the arrest a girl known to the defendant, and with permission father, of his had stayed there for six weeks or so to isolate herself in an attempt to break the barbiturate habit. Prior to the arrest the defendant had been house, seen once in the town, and another time in the and that was all. He testified that he did not see house for six months a time; at he came down from Atlanta on spend occasion to night, but never stayed more than nights, never locked house, and presence of the drug was unknown to him. The car, which belonged mother, to his had been sitting unlocked in *8 the street for a week.
Under the undisputed persons evidence other than the defendant
had premises had access to the and to the automobile (which house). was not the vehicle driven himby