Draper v. State

• Decision Date: 23 March 1909
• Docket Number: (No. 1,641.)
• Citation: 64 S.E. 117,6 Ga. App. 12
• Parties: DRAPER. v. STATE.
• Court: Georgia Court of Appeals

64 S.E. 117

(6 Ga. App. 12)

DRAPER.

v.STATE.

(No. 1, 641.)

Court of Appeals of Georgia.

March 23, 1909.

1. Criminal Law (§ 15^*)—Offenses—Repeal of Statutes—Effect.

Although, as held in Glover v. State, 4 Ga. App. 455, 61 S. E. 862, all laws allowing the sale of intoxicating liquors in this state, of force prior to January 1. 1908, were repealed by the passage of the prohibition law (Acts 1907, p. 81). it is nevertheless legally possible to indict and convict for violations of any of the statutes repealed by the enactment of the general prohibition law, provided the offense is shown to have been committed prior to January 1, 1908.

[Ed. Note.—For other cases, see Criminal Law, Cent. Dig. § 17; Dec. Dig. § 15.*]

2. Indictment and Information (§ 147*) — Demurrer—Grounds—Offenses — Repeal of Statute—Effect.

Where an offense is charged under a statute regulating the sale of liquors, which has been repealed, the accusation is demurrable if the offense is alleged as having been committed on a day subsequent to December 31, 1907. Likewise the conviction of a defendant upon such an accusation would be unwarranted and contrary to law if the only criminal acts shown by the evidence were done after the repeal of the law which he was alleged to have violated.

[Ed. Note.—For other cases, see Indictment and Information, Dec. Dig. § 147.*]

3. Indictment and Information (§ 196*) — Defects—Waiver.

If, however, the allegation that the offense was committed after the law had in fact been repealed is not demurred to, and upon the trial evidence is introduced warranting a finding that the defendant committed the offense at a time prior to the repeal, the allegation as to the date becomes immaterial, and the conviction of the defendant is authorized. The allegation that the offense was committed on a day subsequent to the repeal of the law upon which the criminal accusation is based is in effect the allegar-tion of an impossible date, and is demurrable; but the defect cannot be reached by motion for new trial.

[Ed. Note.—For other cases, see Indictment and Information, Cent. Dig. § 628; Dec. Dig. § 196.*]

(Syllabus by the Court.)

Error from City Court of Statesboro; J. F. Brannen, Judge.

Henry Draper was convicted of selling intoxicating liquor at retail without a license, and he brings error. Affirmed.

H. B. Strange and R. Lee Moore, for plaintiff in error.

Fred T. Lanier, Sol., for the State.

RUSSELL, J. The plaintiff in error was tried upon an accusation in which it is alleged that on the 5th day of July, in the year 1908, he "unlawfully, * * * without license, and without taking the oath prescribed by law, and without license from the proper authorities, " either of the county or of any city, "did sell * * * brandy, rum, gin, whisky, and spirituous and intoxicating liquor, and did sell by retail, for a valuable consideration, a certain quantity of wine, contrary to the laws of said state, the good order, peace, and dignity thereof." This accusation was filed at the August term, 1908, of the city court of Statesboro, and was tried at the October term of that court. The accusation is plainly one for retailing without license. All existing laws upon that subject were repealed in the passage of the prohibition bill of 1907 (Acts 1907, p. 81), which became effective January 1, 1908. Glover v. State, 4 Ga. App. 455, 61 S. E. 862 (1). Inasmuch as the accusation, upon its face, charged no offense against the laws of the state, it was subject to demurrer, and If a demurrer had been interposed the accusation should have been quashed. The defendant, however, did not demur. He went to trial, and after his conviction moved for a new trial upon the ground that the verdict finding him guilty is contrary to the evidence and contrary to the law. The trial judge overruled the motion for new trial, and exception is taken to his judgment.

Upon the trial, although there was evidence that the defendant sold some wine in 1908, several witnesses testified that they had bought wine from the defendant during the year 1907, and at various times during that year. The case is controlled by our ruling in Newsome v. State, 2 Ga. App. 392, 5S S. E. 672, and the trial judge did not err in overruling the defendant's motion for new trial. The defendant could not have been convicted for either of the sales alleged to have been made in 1908, because, as held in Glover v. State, 4 Ga. App. 455, 61 S. E. 862, the passage of the general prohibition law, which, by its terms, became effective January 1, 1908, repealed all existing statutes regulating the sale of intoxicating liquors in this state. If the defendant had objected to the testimony regarding sales said to have been made by him in 1908, it would have been the duty of the trial court to repel this testimony; but there is no reason why one who may have violated any of the criminal statutes superseded and repealed by the general prohibition law may not still be legally indicted and convicted for the offense, provided the evidence demonstrates his guilt Although, as held in Glover v. State, supra, all laws allowing the sale of intoxicating liquors in this state prior to January 1, 1908, were repealed by the passage of the general prohibition law, it is nevertheless legally possible to indict and convict for violations of any of the statutes repealed by the enactment of the general prohibition law, provided the offense is shown to have been committed prior to January 1, 1908. The present case is distinguished upon its facts from the Glover Case, supra. In the Glover Case the undisputed evidence was that the sales were made January 7. 1908, after the penal statutes upon the...