59 Ga. App. 383 | Ga. Ct. App. | 1939
The plaintiff in error was convicted in Troup, a dry county, of the offense of having, possessing, and controlling alcoholic liquors. The evidence showed that the officers raided her place of business and found in the rear of the place of business and in that part of the store which was used as a private residence, one-half gallon or more of moonshine whisky, unstamped, and two pints of whisky which bore proper stamps. The jury returned a verdict of guilty. There was no demurrer to the accusation. Certain requests to charge were refused. We shall discuss the law applicable to the requests made without giving them in detail.
Before the passage of the act of 1937-1938, pp. 117, 122, and 123, it was unlawful to have, possess, and control any alcoholic, spirituous, and intoxicating liquor anywhere in the State. Under section 11-c of the act, “The possession of any distilled spirits or alcohol by any person which does not bear the tax stamps provided for herein shall be unlawful.” This section of the act applies everywhere in the State, irrespective of the fact that the county itself may have legalized the sale and possession of alcoholic liquors. The possession of such unstamped liquor is unlawful, and the fact it is unstamped is a necessary and essential ingredient of the crime. Section 23-b of the act provides: “That from and after the passage of this act, it shall not be unlawful for any person to have and possess for use and not for sale, in any county of the State, one
The defendant in this case was charged in the accusation, in the general language of the prohibition law, that she did have, possess, and control certain spirituous, alcoholic, and intoxicating liquors. There was no demurrer to this accusation. Section 23-b quoted above provides an exception to the prohibition law in those counties which have not voted to legalize the sale and possession of such liquors. In Kitchens v. State, 116 Ga. 847 (43 S. E. 256), it was said: “Where a statute provides in general terms that the commission of a given act by any person .shall constitute a penal offense, and then provides that the law thus framed shall not apply to' a given class of persons, it is not necessary that an indictment based upon the statute should aver that the accused does not belong to the class' of persons thus excepted from the operation of the law.” In the decision the following language from Herring v. State, 114 Ga. 96 (39 S. E. 866), was quoted approvingly: “If by the words of a statute particular acts done are declared to be a crime for which punishment is provided, the offense created is general and applicable to all, and an indictment which sets orrt the offense in the language of the statute is sufficient, notwithstanding there may
Likewise the burden of proof is on the defendant to show that he is excepted from the provisions of the law because of his compliance with, or .coming within, the provisos therein contained. Thus, under an indictment or accusation for carrying a pistol with
Judgment affirmed.