Cooley v. State
| Decision Date | 10 January 1922 |
| Docket Number | 2425. |
| Citation | 110 S.E. 449,152 Ga. 469 |
| Parties | COOLEY v. STATE. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
The Eighteenth Amendment to the Constitution of the United States and the National Prohibition Act, known as the Volstead Act do not supersede or abrogate the Georgia prohibition statute of March 28, 1917 (Laws [Ex. Sess.] 1917, p. 7).
The plea of former conviction, filed by the defendant to the accusation in this case, charging him, under the state prohibition law (Laws [Ex. Sess.] 1917, p. 7), with having in his possession spirituous liquors, in which plea he alleged that he had pleaded guilty to, and been sentenced under, an information in the United States District Court, in the first count of which he was charged with having in his possession intoxicating liquor for sale in violation of the National Prohibition Act, and in the second count of which he was charged with having in his possession and concealing intoxicating liquor with the intent to defraud the United States of the internal revenue tax due thereon, was properly stricken by the trial court on demurrer, for the reasons First, that a conviction under the National Prohibition Act is not a bar to a prosecution under the state prohibition act; and, second, because the offense set out in the accusation in the city court of Savannah was not the same offense as those charged in the information in the United States District Court.
The court erred in assuming that the defendant had made a statement in his own defense, and in charging the jury thereon, when in fact the defendant had made no such statement; but this error is harmless, as the defendant introduced no evidence, and the uncontradicted evidence introduced by the state fully authorized the jury to convict him.
Additional Syllabus by Editorial Staff.
The words "concurrent power," as used in Const. U.S Amend. 18, § 2, giving Congress and the several states "concurrent power" to enforce its provisions, do not mean a joint power to be executed both by Congress and the several states, but a separate power in each, which neither can make exclusive by first legislating for its enforcement or by first prosecuting under their respective enforcement laws.
Error from City Court of Savannah; Jno. Rourke, Jr., Judge.
R. Cooley was convicted of having possession of spirituous liquors, and he brings error. Affirmed.
On July 29, 1920, an accusation was lodged against the defendant in the city court of Savannah, charging him with a violation of the state prohibition act of March 28, 1917 (Laws [Ex. Sess.] 1917, p. 7). This accusation was in two counts. In the first count the defendant was charged with having in his possession spirituous liquors, and in the second count he was charged with selling spirituous liquors.
The defendant demurred to this accusation, on the ground that the Georgia prohibition act had been superseded and repealed by the Eighteenth Amendment to the Constitution of the United States and the National Prohibition Act, known as the Volstead Act (41 Stat. 305). The court overruled his demurrer, and this ruling is assigned as error. The defendant then filed a plea of autrefois convict. In this plea he alleged that on October 22, 1920, in the District Court of the United States for the Eastern Division of the Southern District of Georgia, he was arraigned upon an accusation charging him with having intoxicating liquor in his possession and with selling the same, which charges were in separate counts and embraced the identical charges and covered the same transaction alleged in the accusation in the city court of Savannah. He attached to his plea a copy of the accusation in the United States District Court, which was in three counts. The first count charged him with having and possessing, in violation of the National Prohibition Act, intoxicating liquor for sale. The second count charged him with selling intoxicating liquor. The third count charged him with having in his possession and concealing one quart of intoxicating liquor, with the intent to defraud the United States of the internal revenue tax due upon said intoxicating liquor.
On arraignment the defendant pleaded guilty to the first and second counts in the accusation in the United States District Court, and thereupon was sentenced to pay a fine of $200, which he paid.
On demurrer his plea of former conviction was stricken by the court. The defendant was then tried on the accusation in the city court of Savannah, was acquitted of selling intoxicating liquor as charged in the second count, and was convicted of having liquor in his possession under the first count.
The defendant assigns as error the judgment of the court striking his plea of autrefois convict.
David S. Atkinson, of Savannah, for plaintiff in error.
Walter C. Hartridge, Sol. Gen., of Savannah, for the State.
HINES, J. (after stating the facts as above).
1. This court has held that the Eighteenth Amendment to the Constitution of the United States and the National Prohibition Act, known as the Volstead Act, do not supersede and repeal the Georgia prohibition act of March 28, 1917. Jones v. Hicks, 150 Ga. 657, 104 S.E. 771, 11 A.L.R. 1315; Scroggs v. State, 150 Ga. 753, 105 S.E. 363; Edwards v. State, 150 Ga. 754, 105 S.E. 363; Smith v. State, 150 Ga. 755, 105 S.E. 364; Neville v. State, 152 Ga. 205, 108 S.E. 802. We see no reason to change the position taken by this court in the above cases. This disposes of the question raised by the defendant's demurrer to the accusation in this case.
2. The most serious question presented is whether the conviction of the defendant in the United States court for the Eastern division of the Southern district of Georgia constituted a bar to his trial and conviction on the accusation in the city court of Savannah.
Has the defendant been put in jeopardy twice for the same offense?
From the nature of our dual form of government the same act may be an offense against the laws of the United States and of this state, may be punished under both laws, and conviction and punishment under the federal law is no bar to conviction and punishment under the state law. Fox v. Ohio, 5 How. (46 U.S. ) 410, 433, 12 L.Ed. 213; U.S. v. Marigold, 9 How. (50 U.S. ) 560, 13 L.Ed. 257; U.S. v. Amy, 24 Fed. Cas. 792; Moore v. Illinois, 14 How. 14, 14 L.Ed. 306; Cross v. N. C., 132 U.S. 131, 10 S.Ct. 47, 33 L.Ed. 287; Ex parte Guerra (Vt.) 110 A. 224, 10 A.L.R. 1560; U.S. v. Casey (D. C.) 247 F. 362; U.S. v. Holt (D. C.) 270 F. 639; Martin v. U.S. (C.C.A.) 271 F. 685; U.S. v. Bostow (D. C.) 273 F. 535; U.S. v. Regan (D. C.) 273 F. 727; U.S. v. Cruikshank, 92 U.S. 542, 23 L.Ed. 588; Grafton v. U.S. , 206 U.S. 333, 353, 27 S.Ct. 749, 51 L.Ed. 1084, 11 Ann.Cas. 640; Gilbert v. Minnesota, 254 U.S. 325, 330, 41 S.Ct. 125, 65 L.Ed. 287; State v. Moore, 143 Iowa 240, 121 N.W. 1052, 21 Ann.Cas. 63; Bryson v. State, 27 Ga.App. 230, 108 S.E. 63; 16 C.J. 282.
In Moore v. Illinois, supra, the Supreme Court of the United States said:
The same transaction may constitute a crime under the laws of the United States and also under the laws of the state, and a person violating both laws may be punished for both crimes, and an acquittal or a conviction in one jurisdiction is no bar to an indictment in the other.
Is this principle altered by the adoption of the Eighteenth Amendment to the Constitution of the United States? The first section of this amendment prohibits:
"The manufacture, sale, or transportation of intoxicating liquors within, the importation thereof into, or the exportation thereof from the United States and all territories subject to the jurisdiction thereof for beverage purposes."
The second section of this amendment is as follows:
"Congress and the several states shall have concurrent power to enforce this article by appropriate legislation."
What does the second section of this amendment mean? What do the words "concurrent power" in this section imply? They do not mean that the power is a joint one to be executed both by Congress and the several states. The power thus conferred upon Congress by the states is not exclusively in the latter, although territorially coextensive with the prohibition of the first section. National Prohibition Cases, 253 U.S. 350, 40 S.Ct. 486, 588, 64 L.Ed. 946.
Before the adoption of this amendment the several states alone had power to enforce prohibition within their...
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