58 Ga. App. 131 | Ga. Ct. App. | 1938
Lead Opinion
The defendant was indicted for a misdemeanor, in that on a named date he “did sell and barter for a valuable con
The indictment was sufficient to bring the defendant to trial for a sale of whisky. It was insufficient to charge an offense of selling beer or other malt beverages. It may be stated that at the trial the only evidence for the State was in reference to a sale of malt beverage. “It is a general rule that the allegations of fact made
Judgment reversed.
Concurrence Opinion
concurring specially. Section 1 of the act (Georgia Laws 1935, p. 73) contains an exception in the enacting clause, and the exception should be negatived in the indictment. Elkins v. State, 13 Ga. 435. It is apparent that the scope of the statute is to create an offense limited to a particular class of persons or conditions. The statute does not create a general offense, and the exception therein is not merely an exception to the general offense, but is an essential element in the offense sought to be charged, and it must be averred in the indictment that the accused did not have a license to sell malt beverages. 2 Bishop’s Criminal Procedure, §§ 633, 639; 1 Wharton on Criminal Procedure (10th ed.), §§ 290, 291.