6 Ga. App. 244 | Ga. Ct. App. | 1909
The plaintiff in error, Athens, was convicted in the police court of Atlanta for the violation of §1537 of the City Code, which is as follows: “Any person, firm, or corporation who shall keep for unlawful sale in any store, house, room, office, cellar, stand, booth, stall, or other place, or shall have contained for, unlawful sale in any barrel, keg, can, demijohn or other package any spirituous, fermented, or malt liquors for such sale, shall, on conviction, be punished by fine not exceeding five hundred dollars, or imprisonment not exceeding thirty days, either or both, in the discretion of the court.” The proof showed that the defendant had some whisky at his restaurant in Atlanta and sold some of it. He applied for the writ of certiorari; the judge of the superior court refused it, and he excepts.
Counsel for the plaintiff in error, in their argument, seem to concede that the ordinance is, so to speak, abstractly valid, under the authority of Callaway v. Mims, 5 Ga. App. 9 (62 S. E. 684),
The fact that the defendant kept the liquors at his place of business created no offense under the ordinance; the fact that the place where Lie liquors were kept was a place of business was in no wise essential to the investigation under the ordinance;
This brings us to tire contention of the plaintiff in error that if the intention or purpose of the actor in the transaction is to be considered as such an element of the municipal offense as to distinguish it from the crime under the State law, then to allow the municipality to hold jurisdiction to punish because of' this distinction alone would be to permit punishment for a mere state of mind. The argument is not valid. Intention, state of mind alone, is oftentimes the essential element in distinguishing the lawful from the unlawful, and in differencing one offense from another. To take property from the lands of another without an animus furandi is trespass; with the intent to steal, it is larceny. The specific intent to kill differences assault and battery from an assault with intent to murder. An intention to defraud distinguishes the criminal sale of mortgaged property from the innocent. A reasonable fear of an apparent, though not actual,, danger to one’s life, a mere state of the slayer’s mind, converts the killing from murder to justifiable homicide. To have intoxicating liquors at one’s place of business to drink or to give away is unlawful, but it lacks that aggravation which characterizes the keeping of it for the purpose of unlawful sale; just as to commit assault and battery in a private place is unlawful, but lacks the element of aggravation which converts it into a municipal offense if it be committed in a public street.
We went into all this question fully in the ease of Callaway v. Mims, supra. In that case we discussed the whole question at length, and indulged in an extensive citation of authorities. That case, at least to the extent of the line of reasoning there presented, controls this one. We see no reason to change the views we there expressed. We would not again have dealt so lengthily with the question if it were not for the ability and strenuousness with which we are urged by counsel to limit that case and to distinguish the present transaction upon its particular facts.
We have had several of these cases involving the right of municipalities to punish under ordinances like the one before us; and in almost every case it was argued that it is a dangerous policy to permit police courts, in which no jury trial is obtainable, to impose such severe penalties as most of the city charters allow, for the violation of these ordinances on a subject as to which the municipalities hold jurisdiction by so small a margin and by so slight a shade of distinction. There may be force in this argument (personally, some of the judges of this court think so); if so, it addresses itself to the General Assembly, and not to the court. However, there is one obvious way by which these complaining offenders may escape all this hardship — -by respecting and obeying the law. Judgment affirmed.