117 Ga. 428 | Ga. | 1903
Barker was arraigned on an accusation charging that on October, 10, 1902, in Floyd county, he “did deal in domestic wines, whisky, and other intoxicants, in violation of law, having failed to pay the tax imposed by law.” The evidence warranted a finding that the accused sold to another person in Floyd county a bottle of corn whisky. He was convicted, and his motion for a new trial, containing the general and several special grounds, was overruled. To this judgment he excepted.
It is important at the’’outset to ascertain under'what law the foregoing accusation’Vas’jframed. Counsel for the State insists that the accusation can be properly, treated as having been framed under the Penal Code, § 428,’ § 430, § 431, or § 450. , The accusation is in the language.quoted in the third headnote. -n Section 428 makes it penaljp sell*orl'solicit the sale, personally or by agent, of spirituous; malt, or Íintoxicating liquor’s, in any county where the sale of such liquors is prohibited by law, high license, or otherwise. Section 430 makes it unlawful to fail to pay the tax required by law after registering, or to commence to sell without having complied with the requirements of law as to registration, payment of tax, etc. Section 431 prohibits the sale without having •obtained a license. We think it clear that it was not intended to charge a violation of any of these three sections. A comparison of the language of the accusation with the language of each of these
Section 450 of the Renal Code, or so much_of it as is material, is as follows: "Any person who shall deal in domestic wines or other intoxicants in violation of law,"and shall fail or refuse to pay the tax imposed by law, shall be guilty.,of a misdemeanor.” The accusation is in almost the exact .language of the section, the only difference being that the accusation interpolates the word “whisky,” which is not found in the section.. On a comparison of the two the conclusion is irresistible 'that the pleader intended to charge a violation of this section. So'treating it, can the conviction be upheld ? There are perhaps several reasons why it can not, but only one will be noticed, as it is decisive ’of the case, and that is that 'the word “ intoxicants,” as used in the section, does not embrace corn whisky, which.the evidence shows that the accused sold. In
It is manifest that the Penal Code, §450, is a mere codification of this section of the act of 1887. As the word “intoxicants ” in the act unquestionably means intoxicants the sale of which is not prohibited by any law of the State, the word should receive the same construction in the section of the code. So construing it, it would not include corn whisky, for there was then and is now no general or local prohibition law which excepts from its operation such an intoxicant. We do not think there was any intoxicant excepted from the operation of any prohibition law which would properly be embraced within the term “ whisky,” and if so, this word in the accusation must be treated as surplusage. But certainly corn whisky has not been excepted by any law. So that while the accusation would be good so far as domestic wines and other intoxicants the sale of which has been prohibited by law are concerned, evidence showing the accused to have sold corn whisky would not support a conviction under the accusation. See, in this connection, Loid v. State, 104 Ga. 724. The evidence does not show the sale of such an intoxicant' as’lslreferred to’in’the Penal Code, § 450. Where a law'is’'enactedíprcilíibiting the^sale of.liquors in a given locality, the,roperation of all lasas. ir.egulating''the sale ’of, such liquors is suspended',..and a'n li'ndi'cinxenjB.ior'' accusatio'n^charging a sale of any hquor"the"'sale of1 which. i's. eebMljitely’f^ohibited under all circumstances "should, he framed Undei; $he prohibitory law. Collins v. State, supra, and cases cited. sTbe"f act'that in a given case the local act was a dispensary law would not, we think, alter the principle. Nor do we think that the principle of these
While the question is not now before us, and we can, therefore, make no authoritative ruling on the subject, it may be that a person selling liquors in Floyd county otherwise than by the dispensary can be indicted and punished under the provisions of the act ■of 1893, embodied in the Penal Code, § 428, which was amended by the act of 1897. As thus amended the section is as follows: “ If any person shall sell, contract to sell, take orders for, or solicit, personally or by agent, the sale of spirituous, malt, or intoxicating liquors, in any county or town or municipal corporation or militia district, or other place where the sale of such liquors 'is prohibited by law, high license, or otherwise, he shall be guilty of a misdemeanor.” Acts 1897, p. 39. The manifest purpose of this law was to prevent the sale of intoxicating liquors in a prohibition county, town, or district. See Williams v. State, 107 Ga. 694. The law' is framed to prohibit a sale in a locality where such sale is prohibited “ by law, high license, or otherwise.” The sale of liquor by private individuals is just as effectually prohibited in Floyd county as it is in any other county of the State. Of course Floyd county is not a prohibition county in the sense that the sale of liquors in any form and by any method is absolutely prohibited by law; and it is altogether probable that when the act of 1893 was passed, the General Assembly did not have in contemplation a locality in which sales were made through the medium of a dispensary. But the language of the act may be sufficiently broad to cover a sale made in such a locality; and it is not improbable that the sale of
Judgment reversed.