9 Ga. App. 537 | Ga. Ct. App. | 1911
The indictment charged the defendant with “the offense of a misdemeanor;” it being alleged that in Chatham county, on a day named, he “did unlawfully sell and furnish cocaine, contrary to the laws of the said State,” etc. The defendant demurred generally and upon the following grounds: That the indictment charges conclusions only; that the selling or furnishing of cocaine is not necessarily unlawful; that the indictment fails to set forth any particular facts by reason of which the alleged selling was unlawful; that the indictment denies the ac
The constitutionality of the act of 1907, regulating the sale of narcotic drugs (Acts 1907, p. 131), has been.ruled by the Supreme Court (Stanley v. State, 135 Ga. 859, 70 S. E. 591), and consequently there was no error in overruling the demurrer based upon the contention that the act was unconstitutional.
We shall consider so much of the demurrer as relates to the proper characterization of sales of cocaine lawful and sales unlawful, in connection with what we shall have to say in regard to the sufficiency of the language used in the indictment in the present case, because in framing a criminal charge language may be employed which will as effectually relieve the defendant from the necessity of preparing to meet a different charge as if it were expressly excepted by distinct statement. One who is charged with the offense of carrying a pistol concealed would have no difficulty in being informed by the charge contained in such an accusation that he could not be tried for having a pistol at a public gathering. In other words, the distinct statement of the manner in which an offense was actually committed operates to exclude a charge that it was committed in any other way than that alleged. In the first section of the act now under consideration (Acts 1907, p. 131), it is made unlawful to sell, furnish, or give away any cocaine, or any of the other drugs enumerated therein, “except upon the original,, written order or prescription of a lawfully authorized practitioner of medicine, dentistry, or veterinary medicine, which order or prescription shall be dated and shall contain the name of the person for whom
A general negation of the exception would in many cases be sufficient, as where it is stated that it was sold upon no prescription at all; but in the present case there is neither express nor implied negation of the exception. Judgment reversed.