7 S.E.2d 82 | Ga. Ct. App. | 1940
1. Where the defendant was found in a room in a "wet" county in which room there was a quantity of tax-paid liquor under the counter, also several empty bottles in the rear thereof, and glasses in the room with a fresh odor of liquor, his act was not "disorderly conduct" as against the municipal ordinance of the City of Atlanta, it not appearing that the act was publicly committed in a disturbing, boisterous, or turbulent manner, or that the public was in any manner disturbed thereby or even had any knowledge of the same. To be guilty of "disorderly conduct" the public or some member thereof must be disturbed.
2. Although under the evidence the defendant may have been guilty of a crime punishable under the law of this State, he was not guilty of "disorderly conduct" under the municipal ordinance. The court erred in overruling the certiorari.
Judgment reversed. Broyles, C. J., and Guerry, J., concur.The Supreme Court, in Kahn v. Macon,
95 Ga. 419 (22 S.E. 641 ), held: "Quietly playing and betting for money at a game of cards in a private room, although the room be situated over a barroom and the gaming be done on the Sabbath morning, while an offense against the penal laws of this State, is not `disorderly conduct' as against the municipal ordinances of the City of Macon, it not appearing that the offense was in any sense publicly committed, that the public was in any manner disturbed thereby or even had any knowledge of the same until the participants in the game were discovered and detected by the police officers who made a `raid' upon the room for that purpose." It was claimed that the act of the defendant was "disorderly conduct," and under the above-quoted ordinance could be punished as such. This claim, however, rested wholly upon the fact that the defendant possessed, controlled, and dispensed liquor without a license and in violation of the penal law of this State. (Code, §§ 27-2506, 58-902, 58-924, 58-1032, 58-1069, 58-1070.) In the present case, so far as the record discloses, there was no disturbance of the public. The defendant was found in a room in a county which was "wet" within the purview of the act of 1938 (Ga. L. Ex. Sess. 1937-1938, p. 103 et seq.), authorizing the sale of intoxicating liquors. Tax-paid liquor was found under the counters, several empty bottles in the rear of the place, glasses in the room with a fresh odor, but no license to dispense. It was the duty of the officer to enter the room to suppress the offense, if any; and it was the duty of the recorder, if there was sufficient evidence of a crime, to bind the defendant over until he could be properly indicted by the grand jury or an accusation be filed by the solicitor of any criminal court, as provided by the Code, § 58-1082; but under the facts of this case the recorder had no authority to impose the sentence of thirty days in *608 the stockade and a fine of $100 as penalty for an alleged violation of the municipal ordinance. To be guilty of "disorderly conduct," the public or some member thereof must be disturbed.Williams v. Valdosta,47 Ga. App. 810 ,812 (171 S.E. 553 );Cason v. State,60 Ga. App. 626 (4 S.E.2d 713 ). The evidence did not authorize the judgment, and the court erred in overruling the certiorari.