Flynn v. State, 34579
| Decision Date | 22 April 1953 |
| Docket Number | No. 2,No. 34579,34579,2 |
| Citation | 88 Ga.App. 52,76 S.E.2d 38 |
| Parties | FLYNN v. STATE |
| Court | Georgia Court of Appeals |
Syllabus by the Court.
1. The grounds of demurrer here, that the allegations of the indictment are not sufficient to charge any offense against the law, that they are vague and indefinite, and that the statute referred to therein is too vague and indefinite to be made the basis of a criminal prosecution, are without merit.
2. The ground of demurrer, that the indictment is insufficient because it merely 'alleges a violation of a rule of the Cobb County Planning Commission, the same not being an act prohibited by said Acts,' is without merit because the Act specifically makes the violation of the zoning regulations a misdemeanor.
3. Where, as here, a penal statute or regulation contains an exception or exemption, the rule in regard to the necessity of alleging that the defendant does not fall within such exception is a rule of construction; that is, if the first sentence or part of the penal law describes a penal offense applicable to all persons, and the second merely describes a class to which the law shall not apply, or simply limits the operation of the law as defined in the first sentence, then such latter portion is merely a matter of defense, and it is incumbent upon the defendant to prove that he falls within such exemption. A contrary rule prevails where the penal offense as defined is not directed against all persons generally, but only against a certain class of persons.
4. The indictment is not defective because it fails to have affixed thereto a certified copy of the minutes of the Cobb County Planning Commission containing the record of the promulgation of the regulation in question, this being a matter for proof upon the trial, and it not being required that the evidence be pleaded in the indictment.
Harlee Flynn was indicted in the Superior Court of Cobb County in that he did
Demurrers to the indictment were filed and overruled, and the defendant brought the case by bill of exceptions to the Supreme Court, which transferred it to the Court of Appeals on the ground that no constitutional question had been presented. See Flynn v. State, 209 Ga. 519, 74 S.E.2d 461.
H. Grady Vandiviere, Canton, Ben F. Smith and Luther C. Hames, Jr., Marietta, for plaintiff in error.
James T. Manning, Solicitor Gen., and Albert J. Henderson, Jr., Asst. Solicitor Gen., Marietta, for defendant in error.
Harold S. Willingham, Willingham, Cheney, Hicks & Edwards, Marietta, for party at interest, not party to record.
1. It is contended in special grounds 1, 2, 8, and 9 of the demurrer that the allegations of the indictment are not sufficient to charge any offense against the law, that they are vague and indefinite, and that the statute referred to therein is too vague and indefinite to be made the basis of a criminal prosecution. The Cobb Planning Commission Act, Ga.L.1943, p. 902 et seq., provides for the establishment of a Planning Commission in Cobb County to zone property outside the corporate limits within such county, ratifying and approving zoning ordinances in effect at the time of passage of the act, and altering, modifying or changing the same. Section 7 is as follows: 'Be it further enacted that any person, firm or corporation violating any of the provisions of this Act or any restrictions imposed by authority of this Act, shall be guilty of a misdemeanor'. Code, § 27-701 provides that every indictment shall be deemed technically sufficient which states the offense so plainly that the nature of the offense charged may be easily understood by the jury. As stated in Ruff v. State, 17 Ga.App. 337(5), 86 S.E. 784: 'An indictment in which the essential elements of the crime charged are set out with such particularity as will fully apprise the accused of the exact nature of the offense and the manner in which it was committed is sufficient to withstand a general demurrer.' In Kidd v. State, 39 Ga.App. 30, 146 S.E. 35, it was held: 'If, taking the facts alleged in the indictment as premises, the guilt of the accused follows as a legal conclusion, the indictment is good.'
The indictment here alleges a violation of the act of 1943 in that the defendant maintained a place of business within a zone in which residences only are permitted under a regulation of the Cobb County Planning Commission. The statute specifically makes violations of restrictions imposed under the authority of the act unlawful, and the regulation quoted in the indictment specifically forbids the act allegedly committed by the defendant. The indictment, and the statute under which it is drawn, are therefore sufficiently definite to define the offense, and to put the defendant on notice of the exact offense with which he is charged. The defendant cannot admit the facts alleged in the indictment without admitting his guilt of the offense charged. The indictment is accordingly not subject to demurrer on these grounds.
2. The transfer of this case by the Supreme Court to the Court of Appeals adjudicates that no constitutional question involving the validity of the act of 1943, supra, has been raised. However, the 10th ground of demurrer, to the effect that the indictment merely 'alleges a violation of a rule of the Cobb County Planning Commission, the same not being an act prohibited by the said Act,' is...
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