O'Brien v. State

• Decision Date: 24 January 1900
• Citation: O'Brien v. State, 109 Ga. 51, 35 S.E. 112 (Ga. 1900)
• Parties: O'BRIEN v. STATE.
• Court: Georgia Supreme Court

35 S.E. 112

109 Ga. 51

O'BRIEN v. STATE.

Supreme Court of Georgia

January 24, 1900

Syllabus by the Court.

1.An indictment which simply charges the accused with a misdemeanor, in that he, on a day named, in a designated county, did "unlawfully sell spirituous and intoxicating liquors, contrary to the laws of said state," etc., in effect charges him with violating a law prohibiting and making penal the sale of such liquors in that county, and, if there be no such law, it charges him with no offense at all.(a) Upon a trial under such an indictment, no matter what the evidence may be, the accused cannot legally be convicted of a violation of a statute prohibiting and making penal the sale of such liquors within three miles of a designated church in such county, nor of a violation of a statute regulating the granting of licenses to sell intoxicating liquors by the ordinary of the county, and providing a penalty for a violation of its provisions, nor of the offense of selling liquor without a license.

2.ActFeb. 27, 1877(Acts 1877, p. 33), making lawful, in any county of this state, the sale of domestic wines, in quantities of not less than one quart, by the manufacturers of the same, being a general law, and such wines being "intoxicating liquors," a subsequent act, which, by its terms, undertakes to "prohibit the sale and furnishing of spirituous, malt, or intoxicating liquors" within the limits of a designated county, is unconstitutional.

Error from superior court, Warren county; S. Reese, Judge.

J. W O'Brien was convicted of violating the liquor law, and brings error.Reversed.

Little and Lewis, JJ., dissenting.

Horace M. Holden and E. T. Shurley, for plaintiff in error.

R. H Lewis, Sol.Gen., and Harrison & Bryan, for the State.

FISH J.

1.The defendant in the court below was tried and convicted upon a special presentment, which simply charged him with a misdemeanor, in that he, on the 25th day of May, 1898, did in Warren county, "unlawfully sell spirituous and intoxicating liquors, contrary to the laws of said state," etc.He admitted that on the day named he did, in that county, sell such liquors, but contended that he had violated no law in so doing.In view of the fact that the state, in effect, contends that, under this presentment, the conviction of the defendant was lawful, if his admission and the evidence in the case showed that he had violated the provisions of any statute in reference to the sale of such liquors, which was of force in Warren county, it becomes important to first determine what is the proper legal construction of this presentment.It charged the accused with unlawfully selling spirituous and intoxicating liquors in Warren county.The charge was not that he had sold such liquors in that county, under designated circumstances which rendered the sale unlawful, but the charge imported that a sale of such liquors in Warren county was, per se, unlawful, and that the defendant, having sold them in that county, was guilty of a misdemeanor; for if a mere sale, without more, was not unlawful, and the purpose of the state was to rely for a conviction upon proof that the defendant sold such liquors in that county, at a place, or under circumstances, which, under the provisions of some particular penal statute, rendered the sale unlawful, then the presentment should have contained, in addition to the allegation that the defendant sold such liquors in Warren county, such essential averments of facts as to the place or the circumstances of the sale as, taken in connection with the sale, would show a violation of the statute in question.It is an elementary rule of criminal procedure that the indictment shall contain a complete description of the offense charged, and it follows that there can be no conviction for the commission of a crime an essential element of which is not charged in the indictment.Nor can a defective indictment be helped out by the evidence at the trial, nor be aided by argument and inference.Clark, Cr. Proc. §§ 325, 509;1 Whart. Cr. Pl. § 166;10 Enc. Pl. § Prac. 473 et seq.; Black, Intox.Liq. §§ 437,440,448,463,476,477; and cases cited by all these authorities.

While under section 929 of our Penal Code, an indictment is sufficiently technical and correct if the offense be charged in the terms and language of the Code, or so plainly that the nature of the offense charged may be easily understood by the jury, yet this court has frequently held that the indictment should leave nothing to inference or implication, but its statements should be so plain that a common man may, without doubt or difficulty, from the language used, know what is the charge made against the accused.See cases cited under the section.As said in Johnson v. State,90 Ga. 441, 16 S.E. 92, this section was not intended to dispense with the substance of good pleading, nor to deny to one accused of crime the right to know enough of the particular facts constituting the alleged offense to be able to prepare for trial, nor to deprive him of the right to have an indictment perfect as to the essential elements of the crime charged.It is true there was a special demurrer in that case, but, where the indictment fails to allege an essential element of the crime charged, such defect will not be cured by verdict, and a motion in arrest of judgment will prevail.In Wood v. State,46 Ga. 322, it was held that an indictment for burglary, which fails to charge the intent with which the accused broke and entered, is fatally defective.McCay, J., in delivering the opinion, said: "If the intent is material, it is necessary to allege it.It is a prime ingredient in the offense, and an indictment fails to charge the offense of burglary unless the intent of the breaking," etc., "be set forth."In Thomas v. State,96 Ga. 311, 22 S.E. 956, it was held that: "It is indispensable to the maintenance of a conviction for larceny that the indictment allege the ownership of the property stolen, or that the owner thereof is unknown, and, the indictment failing to allege either, a motion in arrest of judgment should be sustained."In that case, Atkinson, J., said: "That the goods taken and carried away should be the property of a person other than the one so taking and carrying them away is as essential to the commission of the offense of larceny as the taking and carrying away itself.This is one of the essential ingredients of the offense, inhering in the very definition of larceny."So, in Davis v. State,40 Ga. 229, it was held that in an indictment for larceny, it is necessary to allege the value of the stolen article, and, if no value be alleged, the judgment will be arrested after verdict.In the case under review, the offense alleged, if there be such an offense, is either selling spirituous and intoxicating liquors, or selling such liquors in Warren county.There is no statute of force in this state under which the sale of spirituous and intoxicating liquors in the state is, per se, unlawful.Therefore, unless there is a statute applicable to Warren county under the provisions of which a sale of such liquors in that county is unlawful, this presentment did not allege any offense at all against the defendant.There is a special statute which, as amended, undertakes to prohibit and make penal the sale of such liquors in Warren county, and we think that a proper construction of this presentment is that it intended to charge the accused with a violation of this particular statute.SeeCaldwell v. State,101 Ga. 557, 29 S.E. 263.This statute, which we will consider in the next division of this opinion, is claimed by the plaintiff in error to be unconstitutional.Counsel for the state insists that it is constitutional, but contends that, even if it be held unconstitutional, the accused was guilty of the charge made against him in the presentment, because he violated the provisions of an act which makes it a misdemeanor "for any person or persons to engage in the sale of intoxicating, spirituous, or malt liquors, wines, beer, or cider within three miles of the Methodist church at Barnett, Warren county, Ga."(Acts 1884-85, p. 547), as, under the evidence in the case, he sold spirituous and intoxicating liquors within the territory therein designated.The plaintiff in error, in reply to this, contends that this act is also unconstitutional, and, in support of this contention, cites the decision of this court in the case of Bagley v. State,103 Ga. 388, 29 S.E. 123, and32 S.E. 414.While, under the decision in the Bagley Case, there seems to be much force in this contention of the plaintiff in error, in the view which we take of this case, as indicated above, the question whether this act is or is not constitutional is not before us, for the simple reason that the defendant in the court below was not charged with a violation of its provisions.The accused was charged with a misdemeanor, in that, in Warren county, he unlawfully sold spirituous and intoxicating liquors.He was not charged with a misdemeanor, in that he, in Warren county, sold such liquors within three miles of the Methodist church at Barnett, nor was there anything whatever in the presentment which indicated a purpose on the part of the state to charge him with a violation of the provisions of this particular statute.It is true that if this act is constitutional, and he did, in Warren county, sell spirituous and intoxicating liquors within three miles of this church, he would, in a general sense, have unlawfully sold such liquors in Warren county; but, as we have seen, he could not legally be convicted of the distinct offense of selling such liquors within three miles of the Methodist church at Barnett, under a presentment which did not charge him with this...