Where there are two indictments, one charging the defendant with making whisky on a named date, and the other with possessing the liquor thus made on such date, and the cases are tried together, and it appears that the defendant is the owner of the still, a verdict finding the defendant owner guilty of making the whisky is inconsistent with and repugnant to a verdict finding the defendant not guilty of having possession and control of the liquor thus manufactured.

David Finch, C. T. Finch, J. W. Dickerson, and Junior Lanier were indicted by the grand jury of Jenkins County at the May term, 1952, of Jenkins Superior Court, and charged with having distilled, manufactured, and made in said county on March 6, 1952, alcoholic liquors, spirituous liquors, and whisky. David Finch was also indicted at said term for the possession on the same date of "unstamped whisky." The defendant was tried separately from the others jointly indicted with him and found guilty of the manufacture of said whisky; but the jury found him not guilty of possession of such whisky. Both cases, growing out of the same transaction and involving the same facts, were tried together and the same jury returned the two verdicts at the same time. David Finch moved for a new trial on the general grounds, and to the judgment overruling such motion he excepts.

The case is in this court upon exception to the order overruling the defendant's motion for new trial, which was on the general grounds only. It is contended that the court erred, in overruling such motion for the reason that the two verdicts returned by the jury are repugnant and inconsistent, in that under the facts appearing the defendant could not legally be adjudged guilty of manufacturing and making whisky which was not in his possession and control; and that, the jury, having found that this defendant did not have possession and control of the liquor discovered by the officers at this still when they made the raid on March 6, 1952, could not consistently under the same evidence find him guilty of making such whisky. That the evidence otherwise supports a verdict that the defendant owned the still and was assisting in the manufacture of whisky at the still when the officers arrived, finding the still in operation and the defendant and others at the still and a small quantity of whisky already manufactured, is practically conceded by counsel for the defendant (plaintiff in error here) in their brief, which states as follows:

"The evidence shows that on March 6, 1952, plaintiff in error, C. T. Finch, J. W. Dickerson, and a colored boy were found present at a still site in Jenkins County, Georgia. The evidence as introduced by the State shows that plaintiff in error was assisting the others in the manufacturing of the whisky and at the time the officers raided the still, and a small amount of mistamped whisky had been distilled. The testimony of Edgar Hart (one of the raiding officers) shows that the plaintiff in error admitted that the whisky still belonged to them all." The defendant by his evidence and statement contended that he was fishing and went by the still to go home with the others, and that he did not own the still or the whisky, or have any interest therein.

It will be seen, therefore, that the evidence supports a verdict that the defendant is guilty of manufacturing liquor. However, the defendant contends strenuously that the verdict against him is contrary to law and the evidence for the reason that he was being tried under two indictments, both being based on the raid on the still, one for possession of whisky, and the other for making such whisky, and the evidence showed that there was sonic whisky at the still and that the defendant was a part owner of the still and assisting in making the whisky. The defendant contends that the two verdicts--one finding him not guilty of possession and control of the whisky and the other finding him guilty of making it,--are inconsistent and repugnant the one to the other. The defendant says he could not have been guilty of making this whisky without having been guilty of possessing it.

The defendant does not occupy the status of one who was working at the still, as was the colored boy, carrying wood to fire the still or similar work. Such a one could be guilty of assisting in the making of liquor and yet not own or control the liquor.

In Kuck v. State, 149 Ga. 191 (99 S. E. 622), it was ruled: "Where a person is accused in one count on a charge of misdemeanor, alleging that on May 18, 1918, the defendant did sell spirituous liquors, etc., and in another count of the same accusation it is alleged that the defendant on the same day did have, control and possess spirituous liquors, etc., and the same evidence is relied on to convict under both counts, a verdict finding the defendant guilty on the first count and not guilty on the second is void for repugnancy." Here there were two indictments, but they were tried on one case, the evidence being the same, and both charges growing out of this raid on the still, and the two offenses occurring the same day.

This is recognized in Morgan v. State, 28 Ga. App. 358 (111 S. E. 72), relied upon by the State, where the court held that, under some circumstances, a person could be guilty of manufacturing intoxicating liquors without having such liquors in his possession or control.

It is our opinion that the verdicts here were inconsistent, and therefore contrary to law, and that a new trial should have been granted.

Judgment reversed. Townsend and Carlisle, JJ., concur.