4 Ga. App. 30 | Ga. Ct. App. | 1908
Joe Sutton was convicted by the Mayor and Council of Washington, of keeping intoxicating liquors for sale in said city. In his bill of exceptions the judgment of the judge of the superior court, in overruling and dismissing his petition for certiorari, is assigned to be erroneous, upon three grounds: (1) Because the mayor and council were disqualified from hearing and deciding petitioner’s case. • (2) Because his plea of autrefois acquit was erroneously stricken. (3) Because the judgment of guilty, rendered by the mayor and council against him, was unsupported by the facts and the law, and because the ordinance upon which he was convicted was invalid.
If the defendant had been convicted in the city court of Washington, instead of having been acquitted, this very difference to which we have alluded would have rendered a plea of autrefois convict valueless as a defense; and the value of a plea of autrefois acquit can very well be tested by estimating the legal effect of a plea of autrefois convict upon an opposite finding from that rendered. The “same-transaction test” is applicable only in courts of the same jurisdiction; and while it is possible for the legislature, by express grant, to confer upon municipal courts the right to punish for violation of the penal laws of the State, ordinarily they are not clothed with such power. For this reason the same-transaction test can not be applied to a; judgment based upon a municipal ordinance, and a judgment of guilty in the city court; and a plea in bar in either court, based upon the fact that the transaction for which the defendant has already been tried in one court or the other is identical in fact with that upon which he is again about to be tried, affords no ground of defense. A conviction in a mayor’s court, under a municipal ordinance for disturbing the peace, will not protect the accused from a subsequent prosecution in the State court for assault and battery, even though the identical transaction be involved in both cases. Nor will an acquittal in a State court on a charge of assault and battery protect the accused from a subsequent prosecution for disorderly conduct, under a nrunieipal ordinance. DeGraffenreid v. State, 72 Ga. 212; McRea v. Mayor, 59 Ga. 169 (27 Am. R. 390). It has also been held that a conviction in the mayor’s court, under an ordinance forbidding the retailers of spirituous liquors to allow persons to assemble at their places of business on Sunday, is not a bar to a subsequent prosecution for keeping open a tippling-house on the Sabbath. Purdy v. State, 68 Ga. 295. As said by Judge Bleckley in
It is strongly urged that the defendant was acquitted in the city court although Howard Fanning there testified to the same facts to which he testified before the mayor and council. We need not attempt to explain why the witness was disbelieved in one forum and believed in another; for though we are unable to explain the phenomenon, the finding qf the jury and of the council, though their findings are different, each is conclusive, so far as the facts are concerned. As far as our jurisdiction extends in this case is to hold that there was no error in striking the defendant’s plea in the trial now under consideration. Selling liquor contrary to the law of the State is one offense, and is punishable by the State. Keeping liquor for illegal sale is another and a different offense, and is punishable, if at all, by municipal ordinances. The two offenses are absolutely separate and distinct. Paulk v. Sycamore, 104 Ga. 728 (30 S. E. 417, 41 L. R. A. 772, 69 Am. St. R. 128); Hood v. Griffin, 113 Ga. 190 (38 S. E. 409).
Judgment affirmed.