16 Ga. App. 577 | Ga. Ct. App. | 1915
Dissenting Opinion
dissenting. I can not agree with the conclusion, reached by the majority of the court, that this case is controlled by the cases of Wright v. State, and Pitts v. Atlanta; and since the question is one of no little importance, and the opinion of the court in the last-named case was delivered by me, I think it proper to review the facts in this case and give the reasons for my dissent. To my mind the evidence disclosed in the petition for certiorari makes out a case which comes precisely under the ruling of this court in Deal v. State, 14 Ga. App. 121 (80 S. E. 537), and I think that the judge of the superior court properly refused to sanction the petition for certiorari.
Green was convicted in the recorder’s court of Atlanta of the violation of an ordinance of that city prohibiting the keeping of spirituous, fermented, or malt liquors for unlawful salé. The evidence set out in the petition for certiorari was as follows: Moon, a city detective, testified that he knew the defendant, and when asked, “Where is his place of business?” said, “I have always seen him at the Eagles Club;” which he described as being in Atlanta. He said that Jones and Brandon went into this club in December, 1913, and Jones brought back 'and gave to him a half-pint' of whisky, which the witness carried to the office of chief detective Langford, where it had since remained; that on the 13th of December, 1913, he talked with the defendant as to the latter’s connection with that club, and the defendant then stated that he was manager of the Eagles Club. On cross-examination, when the witness was asked if it was not true that he met the defendant for the first time on the 15th of December, in the detective’s office, he re
W. J. Jones testified, that he did not know the defendant, but he knew where the Eagles Club was, and that he visited the club on December 11, 1913, together with Mr. Brandon; that he met Mr. Brandon, whom he had known previously, and together they went to the club, of which Brandon was a member; that Brandon had a key with which he opened the door, and they entered “some serving rooms, enclosed rooms, rooms that are partitioned off by curtains,” which they passed through, and went into another room, “where the cashier stays, and got an order.” The witness said that he gave Brandon the money and Brandon “signed the paper, and we got a half-pint of whisky and two drinks;” that they drank the drinks, but he gave the bottle of whisky to detective Moon; that he paid 40 cents for this half-pint of whisky, and the drinks and the bottle cost 65 cents altogether, he thought; that he could not say where the liquor came from that was brought to Brandon and himself, but “it was brought on a tray by a waiter;” that he gave Brandon the money and Brandon gave it to the cashier; that he was not a member of the Eagles Club, and had never been a member of that club, nor was he ever there before or since; that Brandon said that he (Brandon) was a member of the club, though he said he was in arrears with his dues; that he thought the cashier recognized Brandon as a member, and that both he and Brandon signed a register-book when they went in, and Brandon registered him from Los Angeles, California. The bottle of whisky alleged to have been purchased at the club was admitted in evidence without objection.
A. W. Brandon testified, in response to a question as to what connection he had with the Eagles Club in Atlanta on December 11, 1913, “I don’t know what it was. I met Mr. Jones and I carried him up there to the Eagles Club and registered him from Los
(1) It was insisted that the evidence for the city failed to show that Green, the defendant, was the manager of the Eagles Club on December 11, 1913, when Brandon and Jones visited the club and obtained two drinks and a half-pint of whisky for which 65 or 70 cents was paid, either by Jones or Brandon. The evidence of Moon
Our code recognizes various presumptions of law, such as innocence, and in some cases guilt, of continuance of life for seven years, of a mental state once proved to exist, and “all similar presumptions,” and provides that such presumptions may be rebutted by proof. Penal Code, § 1016. It is said in 1 Wigmore on Evidence, 514, § 437: “When the existence of an object, condition, quality, or tendency at a given time is in issue, the prior existence of it is in human experience some indication of its probable persistence or continuance at a later period. The degree of probability of this continuance depends on the chances of intervening circumstances having occurred to bring the existence to an end. . So far, then, as the interval of time is concerned, no fixed rule can
(2) As already stated, I do not agree with the majority of the court in the opinion that the case made out in the petition for certiorari is exactly covered by the case of Pitts v. Atlanta (supra), and I think that an examination and analysis of the facts recited in that case will show that there is a very marked difference between the proof connecting Pitts with the alleged sale of whisky in, near, or about the Beavers Club, of which he was admittedly the manager, and the facts connecting Green in the case under consideration with the purchase of whisky by Jones or Brandon in the Eagles Club. In the Pitts case it is expressly stated that it' did not appear “that the alleged sale of liquor was made by permission or in conformity with the rules and regulations of the club, or by the actual or implied consent of any of its officers or members; nor (what is more important) does it appear that either of the sales testified to by the sole witness for the prosecution was made in the presence, or by consent, or with the knowledge, of the defendant, or that he ratified or approved the sale in any way; and, so far as the record discloses, the sales were made by parties unconnected with the club.” In the present case it appears that the particular sale relied upon to show the unlawful purpose for which liquor was stored in the Eagles Club by the manager of that' club, the defendant Green, was made in conformity with the rules and regulations of that club and therefore by the consent of its officers and mem
(3) In the able opinion delivered by Judge Pottle for this court in the ease of Deal v. State (supra), it is said: '“All who procure, counsel, command, aid or abet the commission of a misdemeanor are regarded by the law as principal offenders and may be indicted as such.’ The manager of a social club who orders intoxicating liquors for the use of its members, and who either directly or indirectly procures, counsels, commands, aids, or abets in the making of a sale of such liquors, is guilty as a principal. This is true even though he may not have been present when the particular sale was made, and had no knowledge of it until after it was consummated.” In the same ease it is further held (p. 121): "Where a number of persons each contribute money to an agent, who purchases a stock of intoxicating liquor and thereafter dispenses, upon the order of one of them, a quantity of the liquor in exchange for a book of coupons purchased either by that person or by the person to whom the liquor is delivered, the transaction is a sale in violation of the prohibition law, notwithstanding the persons for whose
' Evidently the whisky was ordered by the manager of the club and placed in the common stock, from which it was drawn out on tickets or orders issued by the cashier of the club to the members thereof, who paid for whatever they consumed at the time when they actually obtained it. It can not be supposed, from anything in the testimony of Brandon, that he was under contract to pay to the club or to Green a definite amount for any precise quantity of whisky, or that Green or the club could have called upon him to pay for more than whatever amount he might elect to use and pay for as used. The title to the whisky ordered by Green must have been in the club or in Green, and certainly was not in Brandon;
To contrast briefly the facts in the Pitts ease with the facts in this ease as I see them, it may be said that in the Pitts ease there was no evidence that the sales which were proved to have been made in, near, or around the Beavers Club were made by an officer, agent, or employee of that club, or by any person connected therewith, or in accordance with the by-laws, rules, and regulations of the club, or by the consent of its officers or members, or that these sales were ratified thereafter by Pitts; the sales may have been made by an outsider without any authority from Pitts or from the club; and, since there was nothing to show that the manager; Pitts, was present and participating in or thereafter ratified these sales in any way, this court properly held that the evidence was not sufficient to warrant his conviction. In the present case the manager, Green, himself ordered for the members of the club the whisky which was afterwards served to them in a room of the club, which was provided with “serving rooms, enclosed rooms, rooms that are partitioned off by curtains,” adapted to the convenience of parties desiring to partake of intoxicants with some degree of privacy, and intoxicants were served to members of the club as applied for by them on a check or order signed by the cashier in the employ of the club, and conveyed to the consumer by a waiter also in the employ of the club, and such intoxicants were paid for as obtained, and Green’s knowledge as manager of the club and his connection with the system and plan by which the sales were so made was thus absolutely established and his ratification thereby sufficiently shown; so that in my opinion, under the decision in the Beal case, supra, Green participated in the unlawful sale and aided and abetted in effecting the same.
In the Wright case, supra, it was said: “One employed by such
If the Deal ease, supra, is to be adhered to by this court, and if the rulings of this court as therein set forth mean anything, the transaction as set out by the evidence of Brandon himself was plainly in violation of law, and the liquor at the Eagles Club, which was under the control of the manager, Green, was stored and kept fox the purpose of unlawful sale, since such a purpose may be inferred from one unlawful sale alone, and the proof was clear that the sale to either Brandon or Jones was unlawful. I think therefore that the judge of the superior court correctly refused to sanction the petition for certiorari.
Lead Opinion
This ease is controlled by the decisions of this eourt in Wright v. State, 14 Ga. App. 185 (80 S. E. 544), and in Pitts v. City of Atlanta, 14 Ga. App. 399 (81 S. E. 249); and the judge of the superior court erred in refusing to sanction the petition for certiorari.
Judgment reversed.