Hall v. State

• Decision Date: 07 February 1911
• Docket Number: 2,882.
• Citation: 70 S.E. 211,8 Ga.App. 747
• Parties: HALL v. STATE.
• Court: Georgia Court of Appeals

70 S.E. 211

8 Ga.App. 747

HALL v. STATE.

No. 2,882.

Court of Appeals of Georgia

February 7, 1911

Syllabus by the Court.

Where a single penal statute may be violated in one of several ways not repugnant to one another, the accused may, in an indictment containing a single count, be charged with violating the statute in each and all of the several ways prohibited in the statute, and in such cases proof of the commission of any one of the acts by which the statute is violated will support a conviction.

(a) The prohibition act of 1907 (Acts 1907, p. 81) relates to a single subject-matter, though it may be violated in a number of ways. It is permissible, therefore, that an indictment should in a single count charge a violation of that act in all of the separate ways mentioned in the act, or in any one or more of the ways.

(b) Such an indictment is to be considered as charging but one violation of the law, and as merely varying the details of the violation, and only a single punishment can be imposed as a result of the conviction.

In an indictment charging a violation of the state prohibition law it is not necessary, so far as an alleged sale is concerned to set out the facts as to the person to whom the liquor was sold, how much of the same was sold, or of what the valuable consideration for which it was sold consisted; and, so far as an alleged violation through the accused's keeping it on hand at his place of business is concerned, it is not necessary to describe the place of business, further than to locate it in the county of the prosecution. Where keeping on hand at a public place is charged, the indictment should specify what public place is referred to.

When it affirmatively appears that an error has not resulted in injury, no new trial will be granted therefor. In determining whether error has resulted in injury or not the court may look to the record as a whole.

There was no error in the court's instructing the jury that if the accused kept a public restaurant, consisting of two main eating rooms and a kitchen connected therewith, and kept intoxicating liquor on hand in the kitchen, he was guilty of violating the state prohibition law.

The special request to charge was sufficiently covered by the general charge.

Error from City Court of Douglas; W. C. Lankford, Judge.

P. H Hall was convicted of violating the prohibition law, and he brings error. Affirmed.

O'Steen & Wallace and Quincey & McDonald, for plaintiff in error.

Lawson Kelley, Sol., for the State.

POWELL J.

The indictment charged that the accused, in the county of the prosecution, "did sell and barter, for a valuable consideration, directly and indirectly, and did give away, to induce trade, at his place of business, and did keep and furnish at public places, and manufacture, and did keep on hand at his place of business, alcoholic, spirituous, malt and intoxicating liquors, intoxicating bitters, and drinks which, if drunk to excess, will produce intoxication." To the indictment the accused filed a number of demurrers. We will not set them out in detail, but will discuss topically the points raised by them. The demurrer presents the proposition that it is not permissible for the state to prosecute through an indictment charging in a single count the sale of intoxicating liquors, the keeping on hand of intoxicating liquors at a public place, the keeping on hand of intoxicating liquors at a place of business, and the manufacture of intoxicating liquors. In the case of Tooke v. State, 4 Ga.App. 495, 502, 61 S.E. 917, we had before us an indictment in which these various forms of violating the state prohibition law were set out in separate counts. We pointed out there somewhat at length the difference that existed where an indictment containing several counts is intended to charge several distinct though congruous acts and where it is intended to charge only one act, but to charge it in several ways, so as to cover all variations in the proof. The proposition there presented is cognate to, but not identical with, the one here presented. We have here an indictment containing a single count, and setting forth a number of distinct acts by which a single law was violated. We understand the rule to be that, where a criminal statute dealing with a single subject-matter (and, of course, all statutes in this state must relate to a single subject-matter to be constitutional) prescribes a number of separate ways by which it may be violated, and thus creates a number of separate but congruous offenses, it is permissible that an indictment should in a single count, charge the violation of the statute in all or any number of the ways mentioned therein, provided that the several ways so charged are not repugnant. Such an indictment will be construed as charging but one offense. It is equivalent to the prosecution saying: "We are going to ask a conviction for only one transaction. We are not able to specify with safety in advance the exact method in which we shall prove that the law was violated, but we will prove that it was violated in one of the ways mentioned in the indictment." For example, in the case of Cody v. State, 118 Ga. 784, 45 S.E. 622, it was held that section 453 of the Penal Code of 1895, relating to vagrancy, charged only a single offense, although that offense may be committed in a number of ways, and that, therefore, it was permissible, in a single count of an indictment, to charge the defendant with having committed a violation of that law in all the different ways set out in the statute, so far as they were not repugnant to each other. Upon an indictment so drawn only a single punishment can be imposed. The effect of the crime's being thus charged is for the prosecution to admit that it can prove only a single violation; and, while the state's c...