Day v. State, 54 S.E.2d 668

Day v. State

54 S.E.2d 668 | Ga. Ct. App. | 1949

1. The gravamen of the offense making penal the possession of an apparatus for illegally distilling alcoholic liquors, as provided in Code § 58-209, is knowingly having upon one's premises such an apparatus or knowingly permitting or allowing another to do so. Accordingly, an accusation which fails to charge that the defendant had such an apparatus on his premises, or that the knowingly permitted or allowed another to do so, is subject to general demurrer.

2. Where the court erred in failing to sustain a general demurrer and dismiss the action, the subsequent proceedings were nugatory.

DECIDED JULY 15, 1949. Elisha E. Day was charged by accusation in the City Court of Carrollton with "unlawfully possessing a distilling apparatus, in that said accused, in said county, on the 9th day of February, 1949, with force and arms, did unlawfully have and possess and did have in his actual and manual possession apparatus such as is used in the distilling and manufacturing of spirituous, vinous, malted, fermented and intoxicating liquors and prohibited liquors and beverages, contrary to the laws of said State, the good order, peace and dignity thereof."

The defendant interposed a demurrer to this accusation, contending that it failed to charge him with the violation of any law. The trial court overruled the demurrer, and the defendant preserved exceptions pendente lite. Upon the trial of the case the defendant was convicted and sentence accordingly imposed. Thereafter he filed a motion for a new trial on the general grounds, which was later amended. The exception is to the judgments *663 overruling his demurrer to the accusation and motion for a new trial. 1. The accusation here makes no reference to the premises of the defendant. As was held in Johnson v. State, 79 Ga. App. 210 (53 S.E.2d 498), "The gravamen of the offense making penal the possession of an apparatus for illegally distilling alcoholic liquors, as provided in Code § 58-209, is knowingly having upon one's premises such an apparatus or knowingly permitting or allowing another to do so." Accordingly, an accusation which fails to charge that the defendant had such an apparatus on his premises, or that he knowingly permitted or allowed another to do so, is subject to general demurrer. See Johnson v. State, supra, and cases there cited.

2. Since the trial court erred in overruling the demurrer and not dismissing the accusation, all subsequent proceedings were nugatory.

Judgment reversed. MacIntyre, P. J., and Gardner, J., concur.