Dukes v. State

• Decision Date: 25 July 1911
• Docket Number: 3,012.
• Parties: DUKES v. STATE.
• Court: Georgia Court of Appeals

71 S.E. 921

9 Ga.App. 537

DUKES v. STATE.

No. 3,012.

Court of Appeals of Georgia

July 25, 1911

Syllabus by the Court.

The chief enacting clause of the act of 1907, regulating the sale of narcotic drugs, does not render the sale of cocaine in every instance illegal. The things expressly excepted from the enacting clause of the law should be expressly negatived or the alleged violation should be so specifically charged as to negative the statutory exceptions by implication.

The true test of the sufficiency of an indictment to withstand a general demurrer, or a motion to quash, is found in the answer to the question: Can the defendant admit the charge as made and still be innocent? If he can, the indictment is fatally defective. The mere characterization of an act which may lawfully be committed as unlawful does not suffice to so inform one accused of crime of the nature of the offense with which he is charged as to enable him to prepare for trial. To charge that an act intrinsically lawful was done unlawfully without more, is not a statement of a fact, but a mere conclusion of the pleader.

The court erred in overruling the defendant's demurrer, and all of the subsequent proceedings were nugatory.

Error from Superior Court, Chatham County; W. G. Charlton, Judge.

R. J Dukes was convicted of violating Acts 1907, p. 121, relating to the sale of narcotic drugs, and brings error. Reversed.

Hitch & Denmark, for plaintiff in error.

Walter C. Hartridge, Sol. Gen., for the State.

RUSSELL J.

The defendant was indicted in the superior court of Chatham county charged with the offense of misdemeanor; it being alleged that in Chatham county, on a day named, he "did unlawfully sell and furnish cocaine, contrary to the laws of the said state," etc. The defendant demurred to the indictment upon the following grounds: Generally and also for the reason that the indictment charges conclusions only; that the selling or furnishing of cocaine is not necessarily unlawful; that the indictment fails to set forth any particular facts by reason of which the alleged selling was unlawful; that the indictment denies the accused the right to know enough of the particular facts constituting the alleged offense to enable him to prepare for trial, in that it fails to set out the essential elements of the particular offense charged, and because the indictment fails to inform the accused with sufficient definiteness and certainty as to the way or means by which he is alleged to have...