Bell v. City Of Valdosta

• Decision Date: 04 November 1933
• Docket Number: No. 23505.,23505.
• Parties: BELL . v. CITY OF VALDOSTA.
• Court: Georgia Court of Appeals

47 Ga.App. 808

171 S.E. 572

BELL .

v.CITY OF VALDOSTA.

No. 23505.

Court of Appeals of Georgia,

Division No. 1.

Nov. 4, 1933.

Syllabus by the Court.

Where an ordinance of a city makes the purchasing of whisky within the city an offense, the subject-matter of the ordinance (the buying of whisky) is not covered by any law of this state.

Error from Superior Court, Lowndes County; W. E. Thomas, Judge.

Willie Bell was convicted in the recorder's court of the city of Valdosta of purchasing intoxicating liquors, and he brings error.

Affirmed.

W. A. Morgan and W. E. Perry, both of Valdosta, for plaintiff in error.

Franklin & Langdale and H. C. Eberhardt, all of Valdosta, for defendant in error.

BROYLES, Chief Judge.

The accused was convicted in the recorder's court of the city of Valdosta of "purchasing intoxicating liquors." An ordinance of the city made it a criminal offense "for any person to purchase, or barter for, any intoxicating liquors, within the corporate limits" of the city. The ordinance further provided that the possession of such liquors by any person in the city "shall be prima facie evidence" that such person had purchased the liquors, or bartered for them, within the corporate limits of the city, in violation of the ordinance. The undisputed evidence was that the accused had in his possession, in the city of Valdosta, a pint bottle containing intoxicating liquors. The defendant introduced no evidence, but made a statement to the court in which he admitted the possession of the whisky, but denied having bought it, and said that it was given to him "by a friend." He did not state the name of his friend. The accused obtained a writ of certiorari, and in the petition therefor alleged "that in finding him guilty of purchasing liquor the court is assuming guilt without proof; that the mere possession of a commodity such as whisky, when the party accused explains why he is in possession of it, and this explanation is not rebutted by the city, nor evidence offered to rebut or refute it, is not proof of guilt; that it is violative of due process of law; that there is a State law whereby petitioner might be tried for possessing whisky and convicted if the evidence warranted it; that the only crime chargeable to him is that of possessing liquors, and not that of purchasing them."

The recorder, in his answer (which was not traversed or excepted to), says that the foregoing contentions were not made on the trial before him, and, therefore, were not passed upon.

Upon the hearing of the certiorari, it was overruled.

In Bolton v. City of Newnan, 147 Ga. 400, 94 S. E. 236, the first and second headnotes are as follows:

"1. Where it does not appear from the record that [certain] issues were made in the trial court, they cannot be raised by certiorari in the superior court, and reviewed in this court. Hood v. Griffin, 113 Ga. 190, 38 S. E. 409; Duren v. Thomasville, 125 Ga. 1, 53 S. E. 814; Hardy v. Eatonton, 128 Ga. 27, 57 S. E. 99.

"2. The constitutional issues were raised for the first time in a certiorari to the superior court from a judgment in the municipal court. Therefore the superior court could not consider, nor can this court review, these assignments of error."

It is also well settled that the untraversed answer of the trial magistrate in a certiorari case is controlling therein. It follows that the foregoing contentions in the petition for certiorari cannot be considered by this court. Furthermore, counsel f...