Day v. State
| Decision Date | 15 July 1949 |
| Docket Number | 32612. |
| Citation | 54 S.E.2d 668,79 Ga.App. 662 |
| Parties | DAY v. STATE. |
| Court | Georgia Court of Appeals |
Syllabus by the Court.
1. The gravamen of the offense making penal the possession of an apparatus for illegally distilling alcoholic liquors as provided in Code, § 58-209, is knowingly having upon one's premises such an apparatus or knowingly permitting or allowing another to do so. Accordingly, an accusation which fails to charge that the defendant had such an apparatus on his premises or that he knowingly permitted or allowed another to do so is subject to general demurrer.
2. Where the court erred in failing to sustain a general demurrer and dismiss the action, the subsequent proceedings are nugatory.
The plaintiff in error, Elisha E. Day, herein referred to as the defendant, was charged by accusation in the City Court of Carrollton with the offense of unlawfully possessing a distilling apparatus in that 'said accused, in said county, on the 9th day of February, 1949, with force and arms, did unlawfully have and possess and did have in his actual and manual possession apparatus such as is used in the distilling and manufacturing of spiritous, vinous, malted fermented and intoxicating liquors and prohibited liquors and beverages, contrary to the laws of said State, the good order, peace and dignity thereof.'
The defendant interposed a demurrer to this accusation contending that it fails to charge him with the violation of any law. The trial court overruled the demurrer and the defendant preserved exceptions pendente lite. Upon the trial of the case the defendant was convicted and sentence accordingly imposed. The defendant thereafter filed a motion for a new trial on the general grounds which was later amended. The exception is to the judgments of the trial court overruling defendant's demurrer to the accusation and overruling his motion for a new trial.
Emmett Smith, Carrollton, for plaintiff in error.
Earl Staples, Sol., Carollton, for defendant in error.
TOWNSEND Judge (after stating the foregoing facts.)
1. The accusation here makes no reference to the premises of the defendant. As was held in Johnson v. State, Ga.App., 53 S.E.2d 498, 499, et seq., 'The gravamen of the offense making penal the possession of an apparatus for illegally distilling alcoholic liquors as provided in Code, § 58-209 is knowingly having upon one's premises such an apparatus or knowingly permitting...
To continue reading
Request your trial
-
State v. Eubanks
...overruling of a general demurrer may be insisted upon after trial, and can result in reversing a conviction. E. g., Day v. State, 79 Ga.App. 662, 54 S.E.2d 668 (1949). However, if no special demurrer is made, the ground is waived. If it is made and overruled and no subsequent issue is made ......
-
McCall v. State
...is not the mere possession, but possession on the land of the owner or person having control thereof, which is forbidden. Day v. State, 79 Ga.App. 662, 54 S.E.2d 668. While this portion of the charge was later corrected, the part which indicated that the defendant would be guilty if a disti......
- Day v. State, 32612.