56 S.E.2d 830 | Ga. Ct. App. | 1949
An indictment charging that the defendant did "possess and control and have in his possession, custody, and control spirituous, alcoholic, and intoxicating liquors and distilled spirits, to wit, wine, being 24 pints thereof in pint bottles, said wine not being domestic wine distilled and made by the said accused for the use of himself and his family," in a dry county, is not subject to demurrer as charging no offense against the prohibition law of Georgia, nor is the indictment contradictory.
The possession of wine is prima facie a violation of the general prohibition law. Prior to the act of 1937-38 (p. 103), there were types of wine which, as indicated above, it was not unlawful merely to possess in any county of the State. There were other types of wine the possession of which was unlawful in any county. From and after the passage of the act of 1937-38 (p. 103), the possession of more than one quart of fortified wine having more than 21% alcohol by volume was unlawful in a dry county (we are assuming compliance with the tax laws and *646
omit any discussion on that ground entirely), as such wine was by the act of 1937-38 (p. 103, Code, Ann. Supp., § 58-1058) to be treated as a spirituous or alcoholic liquor. It was also unlawful, after the passage of the act of 1937-38 (p. 103), to possess more than one quart of fortified wine, as defined by the Federal Alcohol Administration (see Code, Ann. Supp., § 58-1011) — containing more than 14% alcohol by volume. Thus, after the passage of the act of 1937-38 (p. 103), the only wines which could be lawfully possessed in a dry county were those wines produced by natural fermentation, permitted under the acts of 1935 and 1937, which had not been placed back under the general prohibition law by the act of 1937-38 (p. 103). We arrive at this conclusion from this: Code (Ann. Supp.) § 58-1077, when construed with Code (Ann. Supp.) §§ 58-1078 and 58-1011, makes it unlawful in a dry county for one to possess more than one quart of the liquors described in the act of 1937-38 (p. 103), and fortified wine, as defined by the Federal Alcohol Administration, is one of the liquors therein described. That is to say, we think that the legislature not only intended by the act of 1937-38 (p. 103) to legalize and control in wet counties the liquors described in the act, but it also, by Code (Ann. Supp.) § 58-1073 and the other sections in pari materia, intended to legalize and control and give to persons in dry counties one quart of the liquors legalized and described in the act for use and not for sale, etc.; and in Pierce v. State,
The fact that since the passage of the act of 1937-38 (Ga. L. 1937-38, Ex. Sess., p. 103), the act of 1937-38 (Ga. L. Ex. Sess., p. 185), and the act of 1941 (Ga. L. 1941, p. 234), were enacted, does not change the situation relative to the mere possession of wine as it existed on February 3, 1938, the date of the approval of the act of 1937-38, Ex. Sess., p. 103. Under the provisions of section 3 of the act of 1937 (Ga. L. 1937, pp. 851, 853, approved March 30, 1937), certain specified wines were impliedly legalized by being taxed. The total effect of the amendments to this section was merely to change the rates of taxation on some of the wines which had already been specified, designated, and impliedly legalized under section 3 of the act of 1937 (p. 851). No additional wines were legalized by the amendments to section 3.
2. "The office of the videlicit is to particularize that which is general and explain that which is doubtful or obscure; but it must neither be contrary to nor increase or diminish the precedent matter. If what comes under it is repugnant to the precedent matter the videlicit must be treated as surplusage." State v. Brown,
For the reasons stated in divisions 1 and 2, the court did not *648
err in overruling the demurrers, general or special, to the indictment. See, in this connection, Carter v. State,
After careful consideration, the request to review and overrule the case of Owen v. State,
Judgment affirmed. Gardner and Townsend, JJ., concur.