82 Ga. 27 | Ga. | 1889
For the purposes of the present casé, we may assume that the local option law for Douglas ' county was constitutional, and was a valid, operative statute within the county of Douglas, and still we think the offence of selling whisky contrary to that statute was not committed, according to the evidence set forth in the record. The material portion of the evidence was to the following effect: Kenny & Werner were liquor dealers in the city of Atlanta, Fulton county, and kept their store and stock in that city. Dunn was their agent and traveling salesman. He went to Douglasville, in Douglas county, taking with him a ease of samples, and while there
Several cases decided by the highest courts of other States, in criminal proceedings, are. more or less directly in point on the present case. Garbracht vs. Commonwealth, 96 Pa. St. 449; Sarbecker vs. The State, 65 Wis. 171; State vs. Hughes, 22 West Va. 743; Herron vs. The State, 10 S. W. Rep. 25. The last of these cases, which was decided by the Supreme Court of Arkansas, in December, 1888,. is exactly parallel with the present case in all the essential facts, even to the
If it he suggested that the evidence, as we have recited it above, leaves it doubtful as to whether delivery was to be made to the carrier in Atlanta or to the buyer in Douglasville, we answer that where two methods of delivery are open, one legal the other illegal, the former is to be considered as the one contemplated unless the parties by express agreement have adopted the other. Certainly is this true where one would be innocent and the other criminal.
It seems to us that in order to "render prohibito'ry laws in reference to the dispensing and distribution of liquors effectual, in the largest degree, the contract to sell as well as the sale itself should be brought within the purview of the prohibitory statutes ; but until this is done by legislation, the courts are powerless to lend their aid, by the administration of penal sanctions, to what might be considered, and doubtless is, a sound public policy.
The court erred in treating the sale as completed in Douglas county, and in not granting a new trial.
Judgment reversed.