Denham v. State
Denham v. State
Opinion of the Court
Appellant was convicted of possession of heroin. The state’s evidence presented to the jury was that an experienced narcotics officer, driving through a
1. The evidence of appellant’s guilt is circumstantial. There is no direct evidence that he had any control (possession) or even knowledge (constructive possession) of the contraband. The only direct evidence was that he looked nervous, was present when another committed a crime, and fled from the police. "To warrant a conviction on circumstantial evidence, the proved facts shall not only be consistent with the hypothesis of guilt, but shall exclude every other reasonable hypothesis save that of the guilt of the accused.” Code Ann. § 38-109. Presence at the scene of a crime and flight from authority, together, are not sufficient to support a conviction. Griffin v. State, 2 Ga. App. 534 (58 SE 781); Hodges v. State, 103 Ga. App. 284 (118 SE2d 858) (connection with persons committing crime, suspicious behavior, and flight not
2. The state argues that Neal v. State, 130 Ga. App. 708 (204 SE2d 451) controls and requires us to hold that the evidence here was sufficient. However, the defendant there was arrested while alone in the front seat of a car where drugs were in plain view. Here the evidence shows only that appellant was driving a car in which a person who possessed heroin rode. The officer testified that the passenger ". . . turned around in the seat. . . toward the outside of the car, toward the street...” and had his back to the driver. That testimony is not sufficient to establish appellant’s knowledge of the presence of the heroin.
The evidence presented to the jury, though consistent with the hypothesis of guilt, was not sufficient to exclude every reasonable hypothesis save that of the guilt of the accused. It was, therefore, error to deny appellant’s motion for a directed verdict of acquittal.
Judgment reversed.
Dissenting Opinion
dissenting.
I cannot agree that the evidence in this case did not authorize the inference that the appellant knew that heroin was present in his automobile. He was, after all, sitting next to his companion as the latter stuffed the 12 plastic bags into the car window. It defies reason to
I find that the evidence, when construed in support of the jury’s verdict, as we are required to do on appeal, excludes every reasonable hypothesis other than the accused’s guilt. Consequently, the jury’s verdict was fully authorized and should be upheld.
I am authorized to state that Presiding Judge Deen and Judge McMurray join in the dissent.
Reference
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