Capitol Distributing Co. v. State

Decision Date09 February 1951
Docket NumberNo. 2,No. 33319,33319,2
Citation83 Ga.App. 303,63 S.E.2d 451
PartiesCAPITOL DISTRIBUTING CO. et al. v. STATE
CourtGeorgia Court of Appeals

SYLLABUS BY THE COURT.

An indictment based on Chapter 58-10 of the Code Supplement (Act approved February 3, 1938, to tax, legalize and control alcoholic beverages and liquors) in which it is attempted to charge the unlawful sales of spirituous liquors in a wet county, must either specifically charge the unlawful manner in which the sale was made or it must negative all methods by which such sales may be legally consummated.

The above named defendant and 18 others were jointly indicted in the Superior Court of Fulton County for the unlawful sales of intoxicating liquors. The indictment charges the defendants with unlawful sales of liquor in that they sold in Fulton County on dates specified therein for a valuable consideration quantities in excess of two quarts of distilled spirituous liquors to persons not the holders of retail liquor licenses issued by the State Revenue Commissioner and not the holders of wholesale liquor licenses issued by the State Revenue Commissioner. The names of the purchasers are alleged in the indictments. It is also alleged that the defendants have no retail licenses issued by the State Revenue Commissioner to sell such liquors. The indictment consists of 11 counts, 10 of which are identical except as to names of the purchasers and dates of the purchases. The 11th count is identical with the other 10 except that the names of the purchasers therein are not set forth, this count charging the defendants with such sales to persons not the holders of retail liquor licenses issued by the State Revenue Commissioner and not the holders of wholesale liquor licenses issued by the State Revenue Commissioner, said purchasers in count 11 being charged to be persons other than those specifically named in the preceding 10 counts of the indictment, and the date of sale being other than the dates alleged in the previous counts of the indictments.

Each of the defendants interposed identical general demurrers to the indictment, the overruling of which is assigned as error.

Arnall, Golden & Gregory, C. E. Gregory, Jr., Candler, Cox & McClain, Morgan S. Belser, J. Kurt Hollard, Smith, Kilpatrick, Cody, Rogers & McClatchey, Hoke Smith, Spalding, Sibley, Troutman & Kelley, James Sibley, Douglas, Evans & Cole, W. E. Andrews, Stonewall H. Dyer and Marvin G. Russell, all of Atlanta, for plaintiff in error.

Paul Webb, Sol. Gen., William Hall, Atlanta, for defendant in error.

TOWNSEND, Judge (after stating the foregoing facts).

Fulton County is a wet county, a fact of which the courts will take judicial cognizance, Leonard v. State, ex rel. Lanier, 204 Ga. 465(4-a), 50 S.E.2d 212; Combs v. State, 81 Ga. 780, 8 S.E. 318; Bass v. State, 1 Ga.App. 790, 57 S.E. 1054; Woodard v. State, 103 Ga. 496, 30 S.E. 522; Oglesby v. State, 121 Ga. 602, 49 S.E. 706; Central of Ga. Ry. v. Gwynes, 153 Ga. 606, 113 S.E. 183. The indictment in this case is drawn under the provisions of the Act of 1938 to legalize and control alcoholic liquors and beverages, Ga.L.1937-38, page 103 et seq., as condified in Chapter 58-10 of the Code Supplement. Code Supp. § 58-1068 provides that, 'Nothing in this Chapter shall be construed as giving any person a right to sell spirituous liquors as herein defined, but the manufacture, sale, and distribution of spirituous liquors is declared to be a privilege in this State and not a right.' The sale of liquor is therefore a misdemeanor under the provisions of Code Supp. § 58-1069 and § 58-1070 providing in substance that the violation of any of the provisions, rules and regulations of Chapter 58-10 shall be a misdemeanor unless it is lawfully done, that is, done in accordance with one or more of the only three provisions of the law setting out how liquor may legally be sold in a wet county. These provisions are embodied in Code Supp. § 58-1024, regulating distiller's licenses, § 58-1025 regulating wholesaler's licenses, and § 58-1026 regulating retail licenses. Any sale which is in a wet county and is made in accordance with one of these three code sections is legal. Any sale not so made is illegal. The indictment expressly states that the accused do not have retailers' licenses. It is silent as to whether they have wholesalers' licenses or manufacturers' licenses. It charges that the persons to whom the sales were made, whether known or unknown, were not the holders of wholesale licenses and not the holders of retail licenses. The indictment is silent as to whether or not these persons were holders of manufacturers' licenses.

The indictment is therefore ambiguous in that it is not drawn in accordance with any of the three licensing provisions of the act, and it is accordingly impossible to say with any certainty whether the State intended to charge a violation of a wholesale license, a violation of a license to manufacture (which allows sales in bulk to other manufacturers or wholesalers) or a sale without a license of any kind. Further, accepting all the allegations of the indictment as true, it does not appear that the sales charged were unlawful, since the indictment fails to allege that either the accused or the purchasers did not have a distiller's license as provided by Code Supp. § 58-1024. Brief of counsel for the State contains the following statement, 'The indictment in the case at bar charges an unlawful sale of whiskey; a sale not authorized by Chapter 58-10 of the Code; a sale which could not have been legally licensed by the State.' However the sale alleged in the indictment could have been legally licensed by the State, under the provisions of Code Supp. § 58-1024, as above pointed out, and for this reason the indictment is insufficient.

An indictment which states the offense in the language of the code, or so plainly that the nature of the offense charged may be easily understood by the jury, is a good indictment. Code, § 27-701. If not stated in the language of the code, it must allege every essential element of the crime charged. O'Brien v. State, 109 Ga. 51, 35 S.E. 112. Mathews v. State, 16 Ga.App. 312, 85 S.E. 284. Where a commodity may be legally sold under a license, an indictment alleging the unlawful sale of such commodity must negative the fact that the accused had a license, under the terms of which the sale would have been legal. See Plemmons v. State, 58 Ga.App. 131, 198 S.E. 104; Carter v. State, 60 Ga.App. 758, 5 S.E.2d 244; Mathis v. State, 93 Ga. 38, 18 S.E. 996; Elkins v. State, 13 Ga. 435; State v. Haden, 15 Mo. 447; State v. Holder, 133 N.C. 709, 45 S.E. 862.

This does not mean that it is necessary to the validity of the indictment that every legal method for the making of a sale of intoxicating beverages in a wet county must be separately and explicitly negatived. An indictment for the unlawful sale of spirituous liquors in a wet county of this state, in order to describe the crime with legal sufficiency, must either allege the unlawful manner in which the sale was made, or it must allege a sale and negative all lawful ways for such sale to be consummated. The indictment here fails in both these respects. It does not point out the particular unlawful manner in which the liquor was sold, nor does it negative a lawful manner in which the sale could have been made, which is by virtue of a distiller's license.

It follows that the trial court erred in overruling the general demurrer which each of the defendants interposed to the indictment.

Judgment reversed.

MacINTYRE, P. J., concurs specially.

GARDNER, J., concurs.

MacINTYRE, Presiding Judge (concurring specially).

Code, § 58-102 made it unlawful for any person anywhere in Georgia to sell any of the prohibited liquors listed therein, of which distilled spirituous liquors was one. This is a general law. Immediately prior to the Act of 1937-38, Ga.L., 1937-38 Ex.Sess., p. 103, an indictment which alleged a sale or more than two quarts of distilled, spirituous liquors to a named person on a named date within two years prior to the finding of the indictment would have been a good indictment under Code, § 58-102, which was a general law which made it an offense to sell the prohibited liquors referred to therein, of which distilled spirits was one, to any person anywhere in Georgia, and would not have been subject to demurrer, either general or special. Williams v. State, 89 Ga. 483, 15 S.E. 552; Maddox v. State, 118 Ga. 32, 33, 44 S.E. 806; Lee v. State, 184 Ga. 327, 191 S.E. 256.

The fact that subsequently the Act of 1937-38, amending the bone dry law, of which Code, § 58-102 was a part, stated therein that Chapters 58-1, 58-2, and 58-3, shall not apply to that section of such amendatory act would not have made an indictment in like language subject to demurrer if returned after such amendatory act was passed. In other words, every essential ingredient of the general law contained in Code, § 58-102 (the bone dry law) is alleged. Georgia is a dry State and the State does not have to allege that the crime was committed in a dry or wet county. See in this connection, Atkins v. Manning, 206 Ga. 219, 56 S.E.2d 260. Such an indictment is sufficient even though exceptions are created by subsequent clauses or subsequent independent sections. The exception is a matter of defense. The subsequent sections in the amendatory act of 1937-38 relating to selling such prohibited liquors, listed in Code, § 58-102, is not a part of the description of the offense, but are exceptions created, not in the enacting clause, but by subsequent independent sections in the amendatory part of the act. It merely prevents the offense of selling distilled spirituous liquors as defined in Code, § 58-102 (the general law) from having a universal operation or application. If the accused belonged to one of the classes of persons to which the statute is not to be applied, it was...

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7 cases
  • Smith v. Hardrick
    • United States
    • Georgia Supreme Court
    • December 4, 1995
    ...State, 109 Ga. 51, 52, 35 S.E. 112 (1900); Fletcher v. State, 157 Ga.App. 707, 708, 278 S.E.2d 444 (1981); Capitol Distributing Co. v. State, 83 Ga.App. 303, 306, 63 S.E.2d 451 (1951).3 See Durden v. State, 152 Ga. 441, 442-443, 110 S.E. 283 (1921); Perry v. State, 62 Ga.App. 115, 117-118, ......
  • Bienert v. State, 33823
    • United States
    • Georgia Court of Appeals
    • January 24, 1952
    ...of the lawful ways under which the defendant might have sold the liquor in question, under the authority of Capitol Distributing Co. v. State, 83 Ga.App. 303, 63 S.E.2d 451, 452. It is contended by the defendant in error that the accusation has been previously held by this court to be suffi......
  • Crowe v. State
    • United States
    • Georgia Court of Appeals
    • September 18, 1958
    ...indictment. Failure to do so would have subjected the indictment to demurrer, since, under the decision in Capitol Distributing Co. v. State, 83 Ga.App. 303, 63 S.E.2d 451, 452 it must 'either specifically charge the unlawful manner in which the sale was made or it must negative all methods......
  • Martin v. State, 36893
    • United States
    • Georgia Court of Appeals
    • October 24, 1957
    ...prepare his defense. Hall County is a 'dry' county, a fact of which his court will take judicial cognizance. Capitol Distributing Co. v. State, 83 Ga.App. 303, 304, 63 S.E.2d 451. In such county the provisions of the so-called 'bone dry law' (Code, § 58-201) are still in force and effect ex......
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