Where, in a case in which the defendant is convicted of possessing fermented beer, there is evidence that the land on which the beer was found belonged to a person with whom the defendant worked as a sharecropper, it is error for the court to refuse to charge Code 61-501, there being a written, timely request so to charge.

John L. Bexley was tried in the City Court of Carrollton on an information charging him with possessing, on December 17, 1950, fermented beer. The jury returned a verdict of guilty, and the defendant moved for a new trial on the general grounds and by an amendment added one special ground, in which he assigned as error the refusal to give in charge to the jury the provisions of Code 61-501, duly requested in writing.

H. B. Buchanan testified that he owned the land whereon the beer was found, and that "Bexley worked with me that year (1950) on halves . . . this negro (the defendant) lived in my house up there, and worked my farm on halves." This testimony was not refuted or contradicted in any way. The witness also testified: That the place where the beer was found "was a little better than a quarter of a mile from the house where Bexley lived. I knew the house where Yancey did live. I would say there is a very few feet difference from both these houses to the still in his (my) pasture. There is a road that goes from Yancey's house across to where the old sawmill place is, and where the still is claimed to have been found. There is a cultivated field a part of the way. There is a wagon road that goes from Bexley's house clean down to the saw-mill place. There is no trail or anything of the sort, it is just a hard dirt road--nobody could make a track in--a field road that has been there for years no trail, a regular road. Bexley hauled all his wood from the old saw-mill place, or around it." The officers testified that the place where the beer was found was from 350 to 400 yards from where the defendant lived; that the beer was located in the woodland out of the pasture; that a search was made around the defendant's house and some vessels and two jugs were found behind his barn, the jugs containing dregs of whisky; that there were tracks to and from the defendant's house to the still; that there was a house close to where the defendant lived, but it was not as close to the still as the defendant's house; that the pasture where the beer was found came up to the defendant's house and also came up close to Yancey's house; that "there was some traffic going from Yancey's house." Yancey was the name of the person living in the house near the one where the defendant lived at the time the beer was found. H. B. Buchanan testified that he called the sheriff's office and told them to go out and arrest Yancey, who had been operating a still, but that nothing was done about it. There was also testimony to the effect that there was another still some 500 to 600 yards behind Yancey's house; being about a quarter of a mile from this one, and it was not the still where the beer was found.

The trial judge denied the defendant's motion for a new trial, as amended, and the defendant excepts to this judgment.

The defendant was a sharecropper, not a tenant, of the owner of the land whereon this beer was found. The landlord testified that he owned the land and the defendant lived in his house thereon, working his farm on "halves." The defendant, therefore, had no right of possession as to this land whereon the beer was found. Code 61-501 provides: "Where one is employed to work for part of the crop, the relation of landlord and tenant does not arise. The title to the crop, subject to the interest of the cropper therein, and the possession of the land remain in the owner." The defendant was entitled to have the court instruct the jury as to the above Code section, and he duly requested such a charge. The jury were entitled to consider that the defendant was not the owner or in possession as a tenant of the land whereon the beer was found, in determining whether he was guilty as charged. See Clark v. State, 66 Ga. App. 153 (17 S. E. 2d, 552). The court erred in failing to charge the jury as requested.

While a new trial is being granted because of the failure of the court to give a properly and timely presented request, which was applicable--and thus it is not incumbent on this court to deal with the general grounds--it is very doubtful if a verdict for the State will stand in this case without additional evidence, in that the evidence relied on to convict the defendant is entirely circumstantial, does not exclude every other reasonable hypothesis save that of the defendant's guilt, and is entirely consistent with his innocence. We do not mean to hold that in the event of another trial the State might not be able to show by additional evidence the guilt of the defendant. In the absence of proof that the defendant either owned or was in possession of the premises on which the beer was found, or was in control of the beer, or participated directly or indirectly in the makings of the beer or the operation of the still where the beer was located, and it appearing that another had just as much access thereto--we do not think that the evidence excludes every other reasonable hypothesis save that of the defendant's guilt. See Clark v. State, 66 Ga. App. 153, supra; Mullins v. State, 24 Ga. App. 357 (100 S. E. 755); Burke v. State, 54 Ga. App. 225 (187 S. E. 614); Smith v. State, 150 Ga. 755 (2) (105 S. E. 364); Reese v. State, 42 Ga. App. 184, 186 (155 S. E. 373), and cit.; Coker v. State, 42 Ga. App. 385 (156 S. E. 299); Jordan v. State, 43 Ga. App. 474 (159 S. E. 301). In Bundrick v. State, 41 Ga. App. 377 (153 S. E. 77), this court ruled that the evidence did not exclude every reasonable hypothesis save that of the guilt of the defendant, and said that "the evidence does not show that the accused had any interest in the still, that it was on land owned or controlled by him, or even that he had on his working clothes." See Norris v. State, 43 Ga. App. 566, 570 (159 S. E. 597), following Bundrick v. State, supra. In Kinsey v. State, 40 Ga. App. 707 (151 S. E. 394), this court, in a case where the defendant was charged with possessing whisky, ruled that the evidence was circumstantial and did not exclude every reasonable hypothesis other than that of guilt, the ruling being based upon the fact that the whisky was found in a place to which others had access along with the defendant, and that one Charley Head had as much privilege at the place as the defendant did and went in and out of there whenever he was ready.

In Wright v. State, 48 Ga. App. 302 (172 S. E. 687), in which the defendant complained of a verdict finding him guilty of possessing whisky, the evidence was: that the whisky was found in the back yard of the lot on which the defendant lived, that it had rained the previous day, and there were fresh tracks in the mud leading from the pile of rubbish where the whisky was found to the defendant's house, a distance of 30 feet; that in the house three bottles having in them the fresh odor of whisky were found; that there were several persons in the house; that there was another house as close to the liquor as the one where the defendant lived; that there was an alley between the house where the defendant resided and where the can containing the whisky was found and that the can was out in an open space where anyone could have gotten it. This court ruled that the evidence tending to connect the defendant with the offense of possessing whisky "was wholly circumstantial and was not sufficient to exclude every reasonable hypothesis save that of her guilt." In Clark v. State, supra, this court said: "Although the evidence raises a strong suspicion of the guilt of the defendant, yet in the absence of proof that the defendant either owned the premises on which the stills were located, or was in the control and operation of them, or participated directly or indirectly in their operations, we do not think it excludes every reasonable hypothesis save that of the guilt of the defendant."

The court erred in overruling the defendant's motion for a new trial.

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