49 S.E.2d 684 | Ga. Ct. App. | 1948
The evidence authorized the verdict, and neither of the two special grounds of the amended motion for a new trial was meritorious.
H. R. Lambert testified in part as follows: "My official job is investigator for the State Revenue Department. . . I know Leonard Howard. . . I saw him on the 5th day of July, 1947. I saw him at his home. His home is in Carroll County. I found beer there. There were five cases of beer, full cases, and there was two cases on ice in a tub, about two hundred pounds of ice in a tub, . . five cases not iced and two cases iced. I did not see any license or permit there. Howard did not exhibit any license or permit to me at that time. I had been there on occasions prior to that time within the past two years. I had found quantities of beer at those times. . . We always found several cases of beer. We did find some on ice. . . As to what road he lives on, I answer, it ain't a road, there; he lives off the road that goes from Carrollton to Heard County, back west of Lowell. It shows more signs of travel than the road it runs off of which is the main road going into Heard County in that section. I have seen people congregating at or going to and from Howard's house. As to what I have seen around there, I answer, one thing was several cars around, and on this occasion when we made the *713 case there was a crowd in there and two or three men drinking beer in there. One of the men finished drinking his bottle of beer and stuck the bottle in a rack around the door. There are twenty-four small bottles of beer in a case. Two cases would be forty-eight bottles." Mr. Raymond Muse testified: "I am Chairman of the Board of Commissioners of Carroll County, and have been for the past ten months. I have been a member of the Board of Commissioners for the past three years. During my term of office there has not been any permit for the sale or possession of beer in Carroll County." The defendant introduced no evidence, but made the following statement: "I have been living in this county two or three years; moved down here in the country; I have had beer and wine some in my home, keep it regular, and this car that Brother Lambert was talking about, one of my neighbors come there to fix his automobile and I worked on the car, and about the time I got it done I went in the house and got two bottles of beer and brought it out and give it to them. I don't sell beer and wine." This constitutes substantially all of the evidence introduced in the case. 1. In special ground one it is contended that "the court committed error in charging the jury as follows: `Gentlemen, in any business where beer or malt beverages may be retailed, our law provides that if such business is located outside of a municipality, the governing authority of such county, wherein such business is located, is authorized to fix an annual license fee.'
"Movant avers that such charge was erroneous and injurious to him because: (a) That there was and is no evidence on which to base said charge as there is no evidence as to whether the home of the accused — the same being the place where accused was charged with illegally possessing the beer — was outside or inside a municipality."
It might be borne in mind that the word "road" is a term of general use in this State used to designate a passageway in the country, outside of municipalities; and that the word "street" is a term of general currency used to designate a passageway in a municipality. It seems to us that the testimony of Lambert that *714 the accused lived off the road (not a street) that goes from Carrollton to Heard County and that his home was in Carroll County, taken together with the statement of the defendant to the jury that "I have been living in this county two or three years, moved down here in the country," was sufficient evidence to have authorized the jury to find that the defendant's home and the place where he kept the beer for the purpose of illegal sale was in Carroll County and that his home was outside a municipality. Under such testimony there was sufficient evidence on which the judge could base the portion of the charge objected to, and the objection is not meritorious.
2. It is contended in special ground two of the motion for a new trial that the judge should have charged the jury, not only that it was unlawful to offer for sale and to possess for the purpose of sale malt beverages, commonly known as beer, without first obtaining a license as provided in Chapter 58-7 of the Code, but also that the defendant could not be legally convicted of possessing such beer for the purpose of sale unless it contained more than 6 percent of alcohol by volume; and that it was reversible error to fail so to charge.
Section 58-704 of the Code provides: "`Malt beverages' shall be defined to mean fermented beverages made whole or in part from malt, or any similar fermented beverage. But no such malt beverages shall be sold under the provisions of this Chapter which contain more than six percent of alcohol by volume." This provision, when considered in connection with the other provisions of the prohibition law, means that, if the beer contains more than six percent of alcohol by volume, it can under no circumstances legally be sold in a dry county, with or without a license. Nothing appearing to the contrary, Carroll County is treated as a dry county by virtue of the prohibition law. Hence it is immaterial in this case whether the beer contained more, or less, than six percent of alcohol by volume, for neither type can be sold in a dry county without a license; and that having more than six percent can not be sold in a dry county even with a license. Thus, if the defendant possessed "beer," a malt beverage, for the purpose of sale in a dry county without a license, he would be guilty as charged whether it contained more or less than six percent of alcohol by volume. Hence it was not error to fail to charge that *715
the defendant could not be convicted unless the malt beverage contained more than six percent of alcohol by volume. This ground is not meritorious. See, in this connection, Bilbo v. State,
3. The evidence authorized the verdict.
Judgment affirmed. Gardner and Townsend, JJ., concur.
