Combs v. State

• Decision Date: 12 December 1888
• Citation: 8 S.E. 318,81 Ga. 780
• Parties: COMBS v. STATE.
• Court: Georgia Supreme Court

8 S.E. 318

81 Ga. 780

COMBS v. STATE.

Supreme Court of Georgia

December 12, 1888

Error from superior court, Catoosa county; FAIN, Judge.

W. H Payne and R. J. McCamy, for plaintiff in error.

J. W Harris, Jr., Sol. Gen., by A. S. Johnson, for the State.

SIMMONS J.

Combs was indicted for selling intoxicating liquors in the county of Catoosa, "contrary to the laws of said state," etc. He pleaded not guilty. On the trial of the case the jury returned a verdict of guilty. He made a motion for a new trial, which was overruled by the court, and he excepted. The only ground insisted on before us for reversal of the judgment of the court below was the third ground of the motion, which is as follows: "Because the court erred in charging the jury as follows: 'I charge you that the local option law for Catoosa county is now of force, and was when the offense in this case is alleged to have been committed. I have before me the record kept by the clerk, in which it is recited that, at the election held under the provisions of said law, a majority of the votes cast were for prohibition, and the law became operative in Catoosa county on the 8th day of November, 1883."' The plaintiff in error was indicted under the act approved September 28, 1883 which provides that "it shall not be lawful for any person to sell in any quantity any spirituous or intoxicating liquors in the county of Catoosa, in this state; and any person violating the provisions of this act shall be deemed guilty of a misdemeanor, and, on conviction thereof, shall be punished," etc.: "provided, this act shall take effect only on the following conditions, and not otherwise." The act then provides that the ordinary of said county shall order an election, and give notice by publication in a newspaper; that the election shall be held under the general laws governing elections in this state; and provides that the managers of said election at the different precincts shall make returns from their respective districts and shall assemble at the court-house to consolidate the votes, and make return of the same, with the tally-sheets and lists of voters, to the clerk of the superior court, whose duty it shall be to file the same in his office, and announce the result of said election in a newspaper; and, if a majority of the legal votes of said county are for prohibition, then this act shall take effect on the day of the publication of the results by the clerk, and he shall so announce in his notice. The act further provides that, if a majority of the legal votes of said county shall be for prohibition, the clerk of the superior court of said county shall file a copy of said notice issued by him, with his certificates showing the date of the publication thereof, in his office, which notice and certificate shall be entered on the minutes of the superior court of said county, and said record of a certified copy thereof shall be competent evidence to show when this act went into effect.

Acts 1882-1883, p. 613. Counsel for the plaintiff in error insisted before us that the court erred in giving the above charge, for two reasons: (1) Because there had been no evidence introduced before the jury that the law had gone into effect in the county of Catoosa; and (2) because it was an expression of OPINION on the facts of the case.

We do not think that these exceptions to the charge are well founded. We do not think that, in a prosecution under the local option laws passed by the legislature, it is necessary for the state either to allege in the indictment, or prove before the jury, that said laws are operative in the counties which have adopted them by a vote of the people. They are public local laws, passed by the legislature and approved by the governor, and as such would be judicially recognized without proof. Section 3815 of the Code declares that "all laws and resolutions of the general assembly, as published by authority, shall be held, deemed, and considered public laws, and recognized judicially without proof." This was an act passed by the general assembly, and...