105 Ga. 709 | Ga. | 1898
Mohrman was arraigned in the city court of Richmond county, charged with the offense- of keeping open a tippling-house on the Sabbath day. At the trial the following facts were agreed to: “(1) The rooms for keeping open which the defendant was indicted were kept open on the day named in the indictment. (2) Said rooms were used as a rendezvous where the ‘Grabemax Social Club’ did gather on the Sabbath day named ih the indictment, and other days, and drink, from a bar kept in the said rooms, intoxicating liquors. (3) They were kept open with the defendant’s knowledge, on the Sabbath day as alleged. (4) Said rooms were rented by ‘The Grabemax
An examination of the statement of facts above quoted will show that the “Grabemax Social Club” was distinguished from an ordinary tippling-house in three' particulars: (1) The-selling of liquor on Sunday was incidental to, and not the main object of, the organization. (2) The accused was an employee- and officer of the club, and not the owner thereof. It was his-duty, acting under orders of the governing board of the club, to see that the bar was properly conducted and kept open for the use of the members, and to exercise a general superintendence over the club. (3) “Only members are permitted in the said club rooms on Sunday or any other day.”' We are called upon to decide whether these three distinguishing characteristics of this social organization take it out of that class of liquor-selling establishments commonly denominated “tippling-houses.”
The object of the General Assembly in passing this statute, as was said by Warner, J., in Hall v. State, 3 Ga. 18, “was to re
It is rather difficult to embrace within one comprehensive definition every class of resort which could properly be called a tippling-house. Judge Bleckley, in Minor v. State, supra, says that “ it is something easier for an offender to baffle the dictionary than the Penal Code, for the former is perplexed with verbal niceties and shades of meaning, while the latter grasps in a broad, practical way at the substantial transactions of men. The code offers no definition of a tippling-house. It deals with them as establishments too well known to need description, and simply prescribes a penalty for keeping them open on the Sabbath day or Sabbath night.” According to Black’s Law Dictionary, a tippling-house is “a place where intoxicating drinks are sold in drams of small quantities to be drunk on the premises.” Anderson says it is “ a place of public resort where spirituous, fermented, or other intoxicating liquors are sold or drunk in small quantities without a license therefor.” Also, “a public drinking-house — where intoxicating liquor is either sold by drams to the public, or else givefi. away and imbibed.” (Anderson’s Law D., “tippling-house”.) The house under consideration in the present case comes within the letter of the definition first quoted, and within the spirit, at least, of the last. See also Black, Intox. Liquors, §20. But, as Judge Warner, quoting from Chief Justice Marshall, says in Hall v. State, supra, “although penal laws are to be construed strictly, they are not to be construed so strictly as to defeat the obvious intention of the legislature.” And in Sanders v. State, supra, we find the following: “Courts are not very astute in shielding violators of this provision from punishment by resorting to niceties of verbal criticism such as would be intelligible only to grammarians and fastidious scholars, but would utterly fail to impress less
Even if a sale is necessary before a place where liquors are-furnished can be characterized as a tippling-house, the weight of modern authority seems to be, that such a furnishing as the evidence in the present case discloses is a sale. In the case of State v. Lockyear, 95 N. C. 633, a number of persons organized a club for social and literary purposes, and became duly incorporated. Incidental to the main purpose of the organization, the members, but no other persons, were permitted to purchase from the defendant, its steward, liquors and other articles, which were furnished by the club at a price fixed by its officers, sufficient to cover the cost, but not for the purpose of profit. It was there held that the furnishing of liquors to the members of the club, under these circumstances, was a sale, in violation of the local option act. In the opinion Chief Justice-Smith uses-this language: “There can be no question that in a strict legal sense the transaction described in the verdict is a sale of spirituous liquors. All the elements of an executed contract are present. The corporate body, a legal entity, and the owner of the liquor, through its servant, the defendant, delivers it to the purchaser at his call, and receives a fixed compensation in money therefor. The property in the goods passes and vests in the-purchaser, and the money paid is received for and becomes the property of the club. Can there be any doubt that a corporation may make contracts and deal with a corporator, precisely as with a stranger, and valid obligations, capable of enforcement, be thus formed between the parties ? And is 'not this dealing with the prohibited subject directly within the terms of the statute, and does it not open the door to the mischiefs intended to be suppressed? It is not necessary that the vendor should be authorized to sell to any applicant, as an ordinary retailer. He is not allowed to sell to any one, and the fact that uustomers must be members of the association does not relieve him from criminal responsibility under the mandatory statute.” In the opinion will be found several citations of authority supporting the ruling there made. See also State v. Neis, 108 N. C. 787, 13 S. E. Rep. 225, and authorities cited in note in
In this State a sale is not necessary, as has been shown, to make out the offense of keeping open a tippling-house on the Sabbath. Does the statute, fairly construed, embrace within its terms a house of the character described in the present case ? We think so. The statute intended that all places where persons are accustomed to congregate and drink intoxicating liquors should be closed on the Sabbath day. The fact that liquors are furnished to a hundred designated persons, and no others, makes the place where such liquors are supplied none the less a tippling-house. It is still a place where men congregate for the purpose of drinking intoxicants. There is no limitation placed upon the membership of the club over which the plaintiff in error exercised a general superintendence; it is one hundred now, and next year may be five hundred. It is not unfair to assume that some, at least, of its membership are accustomed to congregate at the club rooms on the Sabbath day for the sole purpose of procuring intoxicating drinks. To hold that such a place was not a tippling-house would be doing violence to the
Judgment affirmed.