Mills v. State

33 Ga. App. 151 | Ga. Ct. App. | 1924

Bloodworth, J.

The accusation in this case is based upon the act “to levy a tax upon dealers in cigarettes and cigars, . . to require the use of stamps as evidence of the payment thereof,” etc., approved. August 15, 1923 (Ga. L. 1923, p. 39); amended 1924 (Ga. L. 1924, p. 25). This statute, being penal, must be strictly construed. The gist of the offense, as shown by the act itself, is the selling or offering to sell cigarettes or cigars “without complying with the provisions of this act.” What are the provisions of the act the violation of which is made penal? (a) The person, firm, or corporation accused must be engaged “in selling cigarettes and cigars at retail.” (b) “It shall be the duty of each dealer to affix to each package of cigarettes and each cigar a stamp, or stamps, furnished by said comptroller-general, evidencing the payment of the tax imposed by this act, and to cancel such stamps, before such cigarettes or cigars are offered for sale.” (c) “Any dealer who shall sell, or offer for sale, cigarettes or cigars without complying with the provisions of this act, shall be guilty of a misdemeanor and upon conviction shall be punished as provided by section 1065 of the Penal Code of 1910.”

Before an accusation under this act will be good, all of the three foregoing things must be alleged therein. This1 being true, as it is not alleged in the first count that the accused sold or offered for sale cigarettes or cigars, that count alleged no crime, was subject to the demurrer filed thereto, and should have been stricken.

The second count was not subject to either ground of the demurrer filed thereto. The accused was charged with a statutory offense, and the accusation uses substantially the language of the statute, and is so plain that the nature of the offense charged can be easily understood by the jury, and is sufficiently full and specific to meet all the objects requiring particularity in setting out an offense, enumerated by the Supreme Court in Wingard v. State, 13 Ga. 400 (2). See DeWitt v. State, 27 Ga. App. 644 (109 S. E. 681), and eases cited in the opinion.

Judgment affirmed in part, and reversed in part.

Broyles, G. J., and Luke, J., concur.