Callaway v. City Of Atlanta

• Decision Date: 15 June 1909
• Docket Number: (No. 1,870.)
• Citation: 64 S.E. 1105,6 Ga. App. 354
• Parties: CALLAWAY. v. CITY OF ATLANTA.
• Court: Georgia Court of Appeals

64 S.E. 1105

(6 Ga. App. 354)

CALLAWAY.

v.CITY OF ATLANTA.

(No. 1, 870.)

Court of Appeals of Georgia.

June 15, 1909.

1. Previous Decisions Controlling.

This case is controlled by previous adjudications of the Supreme Court and of this court.

2. Criminal Law (§ 1129^*)—Assignment of Error—Specific.

An assignment of error "that the judgment of conviction, sentence, and fine are contrary to law, " not being specific, presents no question for adjudication.

[Ed. Note.—For other cases, see Criminal Law, Cent. Dig. §§ 2956-2958, 2963; Dec. Dig. § 1129.*]

(Syllabus by the Court.)

Error from Superior Court, Fulton County; J. T. Pendleton, Judge.

C. M. Callaway was convicted Id the recorder's court of the city of Atlanta of keeping liquor for unlawful sale, and, having tendered a petition for certiorari to the superior court, which it refused to sanction, he brings error. Affirmed.

Cox, Cox & Cox, for plaintiff in error.

W. P. Hill and J. L. Mayson, for defendant in error.

POWELL, J. The plaintiff in error was convicted in the recorder's court of the city of Atlanta of violating section 1537 of the City Code, prohibiting the keeping of liquor on hand for unlawful sale. He tendered a petition for certiorari to the judge of the superior court, who refused to sanction it, and to this ruling exception is taken.

He presents only three points: (1) That the conviction is illegal, for lack of evidence to support it, because it appears that, while the defendant did have liquor on hand, he did not have it for the purpose of unlawful sale, but had it for individual consumption; (2) that the conviction is contrary to law, in that the liquor was kept on hand at his place of business, and that the offense is covered by the state law, in such a sense as to oust the municipality of jurisdiction; (3) that the fine imposed by the recorder was not in accordance with the provision of the ordinance, the ordinance providing that one convicted of violating it "shall be punished by fine not exceeding $500, or imprisonment not exceeding 30 days, or both, in the discretion of the court, " the sentence imposed being that the defendant should pay a fine of $500 and costs, and "should work on the streets or public works of said city 30 days under the direction of the superintendent of public works."

As to the first point, the case is controlled by Sawyer v. City of Blakely, 2 Ga. App. 159, 58 S. E. 399. The defendant did contend that he had the liquors on hand for consumption, and not for sale; but there was proof that he had made at least one sale of it. The second point is controlled by Athens v. City of Atlanta, 6 Ga. App.—, 64 S. E. 711.

2. The third point is not made by the record. Counsel for the plaintiff in error contends that he is entitled to raise it under the assignment of error that "the judgment of conviction, sentence, and fine are contrary to law." Assignments of error must be specific, whether contained in a bill of exceptions or in a petition for certiorari. Civ. Code 1895, § 4650; Western & Atlantic R. Co. v. Jackson, 81 Ga. 478, 8 S. E. 209; Durham v. Cantrell, 103 Ga. 166, 29...