19 Ga. App. 639 | Ga. Ct. App. | 1917
The plaintiff in- error was tried before the mayor of the City of LaFayette for the offense of “keeping open place of business on the Sabbath day for the purpose of selling goods in violation of city ordinance.” It appears, from the answer of the mayor, that the ordinance upon which this charge was based is as follows: “Be it ordained by the mayor and council of the City of LaFayette, and it is hereby ordained by the authority of the same, that, from and after the passage of this ordinance, it shall be unlawful for any person, firm, or corporation to keep open any store, stall, market shop, or other place of business within the corporate limits of said city on the Sabbath day for the purpose of selling or vending any article of merchandise, soft drink, or anything kept or sold in a market; or by offering for sale any article of merchandise or soft drink, or by following any usual business or occupation on any Sabbath day, the same not being an act of charity or necessity. Any person or persons violating this ordinance or any part thereof shall be punished as prescribed in section 22 of the Code of the City of LaFayette—adopted October 22, 1903.” A judgment of guilty was rendered and a fine of $25 imposed. The defendant sued out certiorari, the certiorari was overruled, and he brought the case to this court.
Eliminating from our consideration the assignments of error expressly abandoned in the brief of counsel for the plaintiff in error, or not specifically argued, and hence, under the rulings of
It seems to be well settled that “An act penalized by a law of the State may be penalized also by a municipal ordinance, if there is in the municipal offense some essential ingredient not essential to the State, offense, or if the municipal offense lacks some ingredient essential to the State offense.” Morris v. State, 18 Ga. App. 684 (90 S. E. 361); Howell v. State, 13 Ga. App. 74, 76 (78 S. E. 859); Callaway v. Mims, 5 Ga. App. 9 (62 S. E. 654); Athens v. Atlanta, 6 Ga. App. 245 (64 S. E. 711); Alexander v. Atlanta, 6 Ga. App. 329 (64 S. E. 1105); Callaway v. Atlanta, 6 Ga. App. 354 (64 S. E. 1105); Dorn v. Atlanta, 6 Ga. App. 529 (65 S. E. 254). The test to be applied in determining whether or not the State law and the municipal ordinance cover the identical offense is whether the one can be violated without violating the other. It was said in Karwisch v. Atlanta, 44 Ga. 205, that “The Christian Sabbath is a civil institution older than our government, and respected as a day of rest by our constitution; and the regulation of its observance as a civil institution is within the power of the legislature as much as any regulations and laws having for their object the preservation of 'good morals, and. the peace and good order of society: 33 Barbour, 543; 1 Speer, 305. And it is within the right of the city of Atlanta to punish keeping open doors by dealers generally, in the limits of the city upon Sunday, for the purpose of preventing the violation of the State laws, as well as preserving the public respect for the Lord’s day.” In that case an ordinance which prohibited any dealer in any commodity or thing from keeping open his doors on Sunday was under review, and the court held, that although the city could not pass an ordinance upon any violation of the Sabbath day which was punished by State law, it was “competent for the city, by its ordinances, to compel all dealers to keep the doors of their houses of business shut on the Sabbath. This in itself constitutes an offense. . .
The ordinance now under review is apparently somewhat different from the ordinance construed in the Karwisch case, supra, in that this ordinance declares that it shall be unlawful to keep open any store,..etc., “for the purpose of selling or vending any article of merchandise,” etc. In other words, it is apparently not a violation of the ordinance to keep open a store unless it is kept open for the purpose of effecting the sale of merchandise. It becomes necessary, therefore, to determine whether the evidence disclosed that the store of the defendant was kept open on Sunday for the purpose of selling articles or things prohibited by the ordinance. The entire evidence was delivered by the city marshal, who testified in substance as follows: I know the defendant’s place of business, and was about his place on “yesterday, the 19th day of March.” His place was open and he was selling merchandise other than medicine. He conducts a drug business, but I saw him sell coca-cola, and also saw him sell- cigars, and saw him sell some medicine. All that I saw him sell was in the line of his usual every-day business, just what he sells every day. It appears to be conceded that the day testified about was the Sabbath, at least there is no contention to the contrary. Hnder the provisions of the State law it is clear that necessary drugs may be dispensed on Sunday, and therefore a municipality could not make it criminal so to dispense them. Whether a drug-store might therefore keep open its doors to the general public for the sole purpose of dispensing drugs or other such like articles of necessity, notwith
A municipality can not punish for the sale of whisky, since such an act is penalized by the State law, but prior to the adoption of the prohibition act of 1915 (whatever may be the present status of the law) an ordinance penalizing the keeping of liquor for the purpose of sale could be adopted by a -municipality without infringing upon the State statute prohibiting sales. In fact our courts have frequently recognized a distinction between a State statute prohibiting the keeping of intoxicants at the place of business of the defendant and municipal ordinances penalizing the keeping of such liquors anywhere (including the defendant’s place of business) for the purpose of sale. It has often been held that in prosecutions under municipal ordinances for the storage of whisky for 'the purpose of sale, proof of one sale was sufficient to establish the purpose for which at least the whisky sold was kept. Coming, therefore, to the evidence in the case under consideration, in order to apply it to the ordinance, we find that on the Sabbath day the defendant kept open his place of business in the City of LaFayette; that his place of business was a drug-store, and on the day in question he not only dispensed drugs, but also sold cigars and soft drinks. If the purpose in storing whisky can be inferred from one sale of whisky, so likewise can the purpose in keeping open a place of business on Sunday be inferred from proof of one sale of an article or thing, the sale of which on that day is prohibited by law. In the case of Penniston v. Newnan, 117 Ga. 700 (45 S. E. 65), it was held that a sale of tobacco and cigars on the Sabbath does not constitute a work of necessity; and it may be said, in passing, that nothing in that case (which was based on a different ordinance) is opposed to the ruling made in this case. It has been often held that every person is presumed to intend the natural and necessary consequences of his acts, and that every criminal act is presumed to rest on criminal intent, though such presumption may of course be rebutted. In fact our statute itself declares (Penal Code, § 32) “intention will be manifested by the circumstances connected with the perpetration of the offense.” Where one, therefore, keeps open the doors of a drug-store and sells
The whole matter may be thus summed up: ■ A municipality may by ordinance penalize an act performed by one for the purpose of enabling him.to accomplish another and distinct act which itself constitutes a violation of a State statute.
Judgment affirmed.