26 Ga. App. 642 | Ga. Ct. App. | 1921
None of the headnotes in this case require elaboration except the first. The accusation was drawn under section 22 (page 18) of the act passed by the General Assembly of Georgia at its extraordinary session held in 1917, and charged that the accused “ did knowingly permit and allow one, whose name is unknown to prosecutor, to locate on his premises in possession an apparatus for the distilling and manufacturing of whisky and rum.” To this accusation the defendant demurred on three grounds, but the only one argued in the brief of Ms counsel in this court is the second, which, for convenience of reference, we divide into three paragraphs(a) “That the section of the act of the General Assembly of the State of Georgia, No. 22, passed in extraordinary session, March 20-28, 1917, is null and void and unconstitutional, in that it provides a statutory rule of evidence in the latter part of said section No. 22, which, by reason of its generality, when applied to cases brought under this section by the courts, would effectuate results forbidden by constitutional law. That is to say, that act states that proof of certain facts, which are not criminal In themselves, establish the guilt of a party being tried under tins section, of acts which are criminal, and is therefore violative of section 1, paragraph 3, of the constitution of the State of Georgia, and is also violative of sec.— and par.— of the constitution of the State of Georgia.” (5) “That said section 22, the act of the General Assembly in extraordinary session, March 20-28, 1917, is null and void and unconstitutional, in that it undertakes to make.a stat
An examination of the foregoing demurrer will show that nowhere does it definitely point out what parts of the constitution, either of the State or of the United'States, it is claimed is violated by this law. In one part of paragraph (a) of the demurrer a section and paragraph of the constitution is set out, but the article in which this section and paragraph appear is not named. In the other portion of paragraph (a) the article of the constitution is not only not named, but even the section and paragraph thereof are left blank. In paragraph (6) of the demurrer no article, section, or paragraph of the constitution is named, and it is simply stated that section 22 of the act of 1917 is “ repugnant to both the constitution of the State of Georgia and of the Federal Constitution of the United States.” In paragraph (c) of the demurrer it is said that the section under consideration is unconstitutional “ in that it contravenes the general law of evidence,” but no particular portion of the law is pointed out that it contravenes. It will thus be plainly seen that the demurrer is not sufficiently definite and specific to raise any constitutional question. “ Before this court is authorized or required to certify any question to the Supreme Court on the ground that it is a constitutional question, it must be specifically made in the record, and must also be necessary to the proper determination. of the case.” Tooke v. State, 4 Ga. App. 495(1) (61 S.
Judgment.affirmed.