5 Ga. App. 716 | Ga. Ct. App. | 1908
Lead Opinion
M. C. Stoner was indicted in the superior court' of Gordon county for a violation of the prohibition statute of 1907 (Acts 1907, p. 81), in that he did “unlawfully . . sell and barter, for a valuable consideration, Cook’s Malt Ale, Bud near beer, the same being malt liquors.” A demurrer was interposed to the indictment, and the writ of error is for the purpose of testing’ the validity of the judgment overruling the demurrer. The demurrer challenges the sufficiency of the indictment because it fails to-allege that the malt liquors charged to have been sold by the defendant were “either spirituous, alcoholic, or intoxicating.” The language of the statute, pertinent to this question, is as follows: “It shall not be lawful . . to sell or barter for valuable consideration, either directly or indirectly, . . any alcoholic, spirituous, malt or intoxicating liquors or intoxicating bitters, or other-drinks which, if drunk to excess, will produce intoxication.” As a rule, it is sufficient in’an indictment for a purely statutory offense to describe the offense in the words of the statute. Penal Code, §929; 1 Bish. Or. Law, 359; 11 Enc. PI. & Pr. 520. An indictment, therefore, for selling liquor or liquors in violation of the prohibition statute need only describe the liquor or liquors-sold as being alcoholic, spirituous, or malt; and, under this general allegation, proof of either class or character of liquor included within the general descriptive words would be admissible. (Eaves.
The able and learned solicitor-general insists, that if the proof ■shows that the liquor sold by the defendant was in fact a malt liquor, it would be immaterial how much alcohol it contained; that as the legislature had expressly prohibited the sale of “malt liquors,” the only relevant issue would be whether defendant had sold ■a malt liquor, and that if he sold it, it was in violation of the statute; in other words, that the legislature intended to put under the ban of the law all malt liquors, regardless of their properties as intoxicants or otherwise. As we have attempted to show in the Roberts case, supra, this is a too literal construction to be placed on the words of the statute, and clearly antagonizes the intention of the legislature, which was manifestly to protect society from the evils of intemperance, caused by the use of intoxicating liquors as a beverage. It is conceded that the legislature, by the use of the general words, “alcoholic and spirituous liquors,” did not intend to prohibit the sale of all alcoholic and spirituous liquors; for medicinal, toilet, and culinary articles, although they might contain ■sufficient alcohol to produce intoxication, are not included within these general terms; and this court, in the Roberts case, supra, and in the Mason case, 1 Ga. App. 534, and the Supreme Court in Bradley v. State, 121 Ga. 206, hold that the words “alcoholic and spirituous liquors,” as used in the prohibition statute, denote liquors intended for use as a beverage, or capable of being so used, containing alcohol obtained either by fermentation or distillation in such quantity as will produce intoxication when drunk to excess.” In support of his position, the learned counsel cites §§431 ■and 433 of the Penal Code, and the construction of these statutes made by the Supreme Court in Eaves v. State, supra. The statutes and the decision in question relate to the subject of license, ■and not prohibition. [Regulation and prohibition are two distinct
Counsel also refers to the statute which makes it unlawful to-furnish spirituous and malt liquors to minors (Penal Code, §444); and it is contended that the legislature intended to make it unlawful to furnish to minors any kind of malt liquor, regardless of its intoxicating character. We think this construction of the statute in question is unquestionably correct; but we do not think that it affords any support to a similar contention as to the meaning of the prohibition statute. In the first place, the statute making' it unlawful to furnish malt liquors to minors was an amendment to an original act which made it unlawful to furnish intoxicating liquors to minors, and the amendatory act expressly made it a misdemeanor to furnish to minors, without first obtaining written authority from the parent or guardian, “malt liquors of any kind.” And in the second place, we think it entirely within the province of the legislature, for the protection of minors, to prohibit the sale to them of any article that might tend to create an appetite for intoxicants. And we are clearly of the opinion that, by the express terms of the act of 1877 (Acts 1877, p. 107), it is unlawful to furnish to a minor, without first obtaining written authority from his parent or guardian, either spirituous, alcoholic, or “malt liquors of any kind,” whether intoxicating or not.
Rehearing
ON MOTION FOR REHEARING.
The law is too well settled to admit of any doubt, that unless an exception to the generality of a statute appears in the enacting clause, it is not necessary for the indictment to negative the exception, and that the State makes a. prima facie case by proving the offense in general terms, and that the burden of proving himself to be within exceptions raised by construction or implication, or stated in the body of the statute but not in the enacting clausé, is upon the defendant. Elkins v. State, 13 Ga. 435; Hester v. State, 17 Ga. 130; Sharpe v. State, 17 Ga. 290; Jordan v. State, 22 Ga. 555; Hicks v. State, 108 Ga. 749; Kitchens v. State, 116 Ga. 847; Rex. v. Pemberton, 2 Burr. 1036; Anderson v. State, 2 Ga. App. 20, and cit. Rehearing denied.