Blair v. State

• Decision Date: 17 October 1888
• Parties: BLAIR v. STATE.
• Court: Georgia Supreme Court

7 S.E. 855

81 Ga. 629

BLAIR v. STATE.

Supreme Court of Georgia

October 17, 1888

Error from city court of Atlanta; VAN EPPS, Judge.

Indictment for selling spirituous liquor without license. From a judgment sustaining a demurrer to a plea of autrefois convict defendant brings error.

Frank R. Walker, for plaintiff in error.

F. M O'Bryan, for the State.

BLANDFORD J.

1. The plaintiff in error was indicted for selling spirituous liquors without a license. He filed a plea to the effect that in that court he had been formerly tried and convicted of the same offense. The plea was demurred to, and the court sustained the demurrer. We think the court was right in sustaining the demurrer. The plea contained very little of what is essential to a plea of a former conviction. No record of the former trial and conviction was set out. The former judgment was not set out, nor the term at which it was rendered. No such plea has been allowed in any court that we are aware of.

2. But even if the former conviction had been properly pleaded, we do not think it would have constituted any bar to this indictment. It was alleged by the defendant that in the former case he had been convicted of selling liquor to a minor without the written consent of his parent or guardian and that the act of the sale was the same for which he was indicted in the present case. While it may be true that the act of selling was identical in both cases, yet the offenses were separate and distinct. Two different laws were violated.

He violated one law in selling to a minor without the written consent of his parent or guardian; he violated another in selling without a license from the proper authority. We think the true rule is this: If the evidence required to convict under the first indictment would not be sufficient to convict under the second indictment, but proof of an additional fact would be necessary to constitute the offense charged in the second indictment, then the former conviction or acquittal could not be pleaded in bar to the second indictment. Although the testimony as to the act of selling may have been the same in the second of these cases as in the first, yet, in order to convict of the offense charged in the second indictment, it was necessary to prove the further fact that this selling was without a license. Judgment affirmed.

BLECKLEY C.J., (concurring.)

I concur in this judgment upon the first ground, (failure to set out the record of conviction in the plea,) and yield to the force of authority on the other ground. I have very grave doubt, upon principle, whether a single act, although it may have violated two statutes or two sections of the Penal Code will constitute two offenses. The government may, at its election, prosecute for either, but it would seem that one punishment ought to be a satisfaction of the law. Here was a single sale. At one end it required a license from the public, and at the other end it required a license from the parent or guardian. The act was carved into two parts. I analogize it in my own mind to cutting an earth-worm in two,--both ends would be alive. The tail was prosecuted in the first proceeding, and now they prosecute the head, and both have been convicted. I have examined the authorities to my satisfaction, and they seem to justify this sort of proceeding. It appears to me to be violative of principle, but I yield to...