66 Ga. 160 | Ga. | 1880
Harvey B. Downing was tried in the city court of Atlanta for a “misdemeanor.” .
The charge was presented in the form of “ an accusation” made by John C. Neal, alleging and charging “the defendant, on the 31st January, 1880, with unlawfully selling, and offering to sell, to Daniel & Marsh, in said county, kerosene oil, of a fire-test less than one hundred and ten degrees Fahrenheit; and further charged the defendant, on the 31st day of January, 1880, that he unlawfully did sell, and keep for sale and in storage, kerosene oil without having the same inspected and approved by an authorized inspector, contrary to law.”
To this indictment defendant demurred — pleaded “ autre fois acquit,” and not guilty.
The demurrer was overruled by the court — the plea of autre fois acquit was stricken on demurrer, and the trial proceeded on the plea of not guilty.
In impaneling the jury, defendant demanded a jury of twelve men to be selected as by law prescribed for the trial of misdemeanors in the superior court — which demand was refused by the court. On the trial being had, defendant was found guilty. Whereupon he moved for a new trial on various grounds of alleged error as set forth in the record, which motion was overruled, and defendant excepted.
(1.) The first ground of the motion was error in the court in not sustaining the demurrer to the accusation — for that neither count concluded “contra formam statuti,” and that neither count “ alleged that defendant intended to do the act, or was guilty of criminal negligence.”
(3.) Because the court compelled defendant to strike from a panel of twelve jurors — and would not allow the defendant a jury of twelve men to try said cause.
(4.) Because the court allowed the testimony of John C. Neal, over defendant’s objection, to prove the sale of said oil — he not being “ an authorized inspector.”
(5.) Because the court refused to charge the jury, as requested by defendant in writing: “'That, before you can find defendant guilty, you must believe he did the act, and that he intended' to do it, or was criminally negligent in doing the act; But if you believe defendant made the sale as charged,.and in so doing he honestly acted under a mistake as to the fact that the kerosene was under the test, then you cannot find him guilty.”'
■ (5.) Because the court refused to charge as requested by defendant : “ If the barrel of oil sold was branded by the inspector, the presumption is the brand was properly put there, ,and in law this brand would be a conclusion of law that the oil was of the lawful standard of 110 degrees, and defendant would not be guilty if it was below that standard — unless he knew, notwithstanding said brand,’ it was under no degrees.”
(7.) Because the court refused to charge : “That if defendant sold to Daniel & Marsh oil under the test of no degrees, and at the time' he fairly and honestly believed the oil to be up to the test of no degrees, and knew not to the contrary, and did not intend to sell an unlawful, oil, then he would not be guilty.”
(8.) Because the court erred in refusing to charge as requested by defendant as follows : “ In a criminal case the burden of showing defendánt’s guilt is upon the state, and the state must show that defendant intended to do the act, and if it fails in that, beyond a reasonable doubt, you must acquit — that the state must show the intent with which the .oil was sold as well as every other material fact
(9.) Because verdict is contrary to-evidence.
(10.) Because verdict is decidedly and strongly against weight of evidence.
(11.) Because the court erred in charging the jury “that the jury need not consider the second count in the accusation, because there is no proof to sustain a conviction under it except as the keeping of kerosene of this description might be inferred from the fact that such kerosene had been sold by the defendant. Therefore, as this defendant, although he might be convicted on both counts, would only suffer one punishment, it becomes of noprac-. tical importance to consider the second count” — said charge being a strong intimation by the court of an opinion that the offense of selling oil under no degrees existed,-and-that a conviction for that would be sustained.
(12) Because the court erred in charging: “That if the evidence showed defendant sold to Daniel & Marsh a barrel of° kerosene oil, and that it was put to a test prescribed by law, or one substantially the same, and by that test the oil was of less degree fire-test than 110 degrees Fahrenheit, and you believe the test was true and correct, then the law implies the guilty intent, and the burden is on defendant to show that the act was done under such circumstances as to rebut this implication of intent raised by the law from the acts proven. If you believe this implication is rebutted by the evidence you should, find defendant not guilty, but if not so rebutted, and you further believe a case of guilt is made out beyond a reasonable doubt, then you should find him guilty.”
■ The Code of Georgia makes it a penal offense for anyone “ to sell,” offer to sell, or give away kerosene oil of a fire-test less than one hundred and ten degrees Fahrenheit.
How to make the test and determine the safety of the
Further, the sale of uninspected oils is forbidden; neither is one allowed “ to keep for sale ” these oils unless they are inspected under like penalties. These provisions of our Code manifest the care and anxiety of the legislature to guard the people from the dangers incident to so universal a use of this article unless it is prepared by the standard prescribed.
For violating one of the foregoing provisions plaintiff in error has been convicted, and to review the alleged errors of said trial this case is here.
The statute makes it a penal offence “ to sell or offer to sell” any of these oils under the test of no degrees Fahrenheit. It prescribes in the simplest terms “ a formula ” for testing these oils, so that those who deal may know for themselves whether the oil they offer comes up to the test. In addition to this it supplies inspectors “ to test and brand these oils.” He then who sells in disregard of all these precautions and without assuring himself, (which the law makes it his duty to do), that the oil he sells or offers to sell is up to the legal standard — he must bear the consequences of his own negligence or cupidity if he violates the statute. He cannot plead either the negligence of others or his own want of knowledge, as a justification for the omission of a duty the law plainly imposes. The law in emphatic terms prohibits the sale of oil below the test by any one — whether' knowingly or ignorantly. If he sells, or offers to do so, he does so subject to its penalties if he violates it. To hold otherwise would be to destroy the safeguards the legislature have sought to provide in this wisely considered statute against the loss of both life and property.
We freely concur with the court below in the charge he gave to the .jury on this branch of the case, “ that if the evidence showed, defendant sold to Daniel & Marsh a bar
Let the judgment of the court below be affirmed.