21 S.E.2d 268 | Ga. Ct. App. | 1942
1. The indictment was not subject to the general demurrer; and the error, if error, in overruling ground 2 of the special demurrer, was not harmful to the accused.
2. The verdict was authorized by the evidence, and none of the special assignments of error shows cause for a reversal of the judgment.
The demurrer contained the following grounds: 1. It is not alleged in the indictment what person, firm or corporation defendant knowingly permitted to possess and locate the distilling apparatus on his grounds. 2. The indictment charges that said apparatus was one to be used in distilling and making spirituous, vinous, malted, fermented, and intoxicating liquors and prohibited liquors and beverages. Under said charges "the defendant could be convicted of the offense of knowingly permitting and allowing and of having, possessing, and locating on his premises an apparatus for distilling and manufacturing vinous, and/or malted beverages, which under the law of Georgia is not a penal offense," since the making of vinous and malt beverages is legalized under the laws of Georgia. 3. Under the allegations of the indictment no offense under the laws of Georgia is charged, because it is not made an offense, by the Code section under which the indictment was drawn, for the defendant to possess said apparatus on the premises in his actual possession, but the only offense so made is where the defendant knowingly permits another person, natural or artificial, to locate such apparatus on his premises. 4. The indictment is duplicitous in that it charges in the same count acts which, if true, constitute no offense against the laws of Georgia, and acts which constitute an offense under the constitution of the State. *552
The act of the General Assembly of March 28, 1917 (Ga. L. 1917, Ex. Sess., p. 18, now embodied in Code, § 58-209) reads as follows: "It shall be unlawful for any corporation, firm or individual to knowingly permit or allow any one to have or possess or locate on his premises any apparatus for the distilling or manufacturing of the liquors and beverages specified in section 58-201. When any such apparatus is found or discovered upon said premises the same shall be prima facie evidence that the person in actual possession had knowledge of the existence of the same, and upon conviction therefor, shall be punished as for a misdemeanor, the burden of proof in all cases being upon the person in actual possession to show the want of knowledge of the existence of such apparatus on his premises." InMcRae v. State,
Assuming (but not deciding) that the court erred in overruling ground 2 of the special demurrer, the error was harmless to the accused, since "It is well settled that the erroneous overruling of a special demurrer is not harmful error where it affirmatively appears from the evidence in the case that the error did not result in injury to the party interposing the demurrer, and `In determining whether the error has resulted in injury, the court may look to the record as a whole.' Hall v. State,
Special ground 1 of the motion for new trial is merely an elaboration of the general grounds. The other special ground, assigning error on the failure of the court to charge the jury that all admissions should be scanned with care, is without merit. It does not appear from the ground that such a charge was requested and therefore, under repeated decisions of the Supreme Court and this court, the failure to so charge was not error.
In Rucker v. State,
Judgment affirmed. MacIntyre and Gardner, JJ., concur.