82 Ga. App. 130 | Ga. Ct. App. | 1950
Under the act of 1938 (Ga. L. 1937-38, Ex. Sess. p. 103 et seq.) known as the “Revenue Tax Act to Legalize and Control Alcoholic Beverages and Liquors,” embodied in the Annotated Supplement to the Code as Chapter 58-10, the license and tax provided for and levied by the State on the manufacture, sale and distribution of alcohol or distilled spirits “is authorized only in those counties in which a majority . . vote in favor of taxing and controlling alcoholic beverages and liquors.” Under said law alcoholic liquor can only be manufactured, sold and distributed in certain counties, to wit those which have voted in favor thereof. See Code (Ann. Supp.) § 58-1002 et seq. Therefore, no license may be issued by the
A person found operating a distillery making alcoholic liquors in a “dry” county is guilty of the unlawful manufacture of such liquor, which is a felony. Code (Ann. Supp.) §§ 58-206, 58-1067. A license cannot be lawfully issued and granted by the State of Georgia under the provisions of Code (Ann. Supp.) § 58-1025, to a person to manufacture, sell or distribute alcohol or distilled spirits in a “dry” county. It is, therefore, no penal offense, separate from the unlawful manufacture of alcoholic liquor, for a person to operate a whisky still and manufacture. such alcoholic liquor or alcohol without obtaining a license to do so from the State.
In Batty v. State, 114 Ga. 79 (39 S. E. 918), the Supreme Court held, “One cannot be legally convicted of selling spirituous liquors without a license, in violation of the Penal Code, § 431, in a county in which the sale of such liquors is prohibited altogether under the terms of the general local option liquor law, embodied in the .Political Code, § 1541 et seq., the provisions of which have been adopted and are of force in that county.” By parity of reasoning, one cannot be convicted.of distilling
The conviction of the defendant under said indictment was not authorized and was contrary to law, and the trial court erred in overruling the defendant’s motion for new trial on the general grounds.
Judgment reversed.