Hendry v. State

• Decision Date: 31 August 1917
• Docket Number: 578.
• Citation: 93 S.E. 413,147 Ga. 260
• Parties: HENDRY v. STATE.
• Court: Georgia Supreme Court

93 S.E. 413

147 Ga. 260

HENDRY v. STATE.

No. 578.

Supreme Court of Georgia

August 31, 1917

Syllabus by the Court.

There was evidence to support the verdict of guilty.

The act of the Legislature approved November 18, 1915, in reference to intoxicating liquors (Laws Ga. Ex. Sess. 1915, p. 90) makes it illegal for individuals, although they are not carriers for hire, to ship or transport the prohibited liquors therein specified in quantities in excess of that allowed by law from another state into the state of Georgia.

The court below did not err in charging the jury that "no person in Georgia has the right now, under the law, to ship into this state any intoxicating liquors whatever for illegal sale, and if any person does so he violates the law."

Nor did the court err in charging the jury that "it is a violation of the law for any person to have in his possession, in this state, at any one time within a period of 30 days, more than two quarts of intoxicating liquors, or more than forty-eight pints of beer or malt, or more than one gallon of wine, and if any person has any more than that amount in their possession, the law presumes that they are having it and holding it for illegal sale, and the burden would be on the party found with such property in his possession to establish his innocence." The portion of the charge, here excepted to, states in substance one of the provisions of section 17 of the act referred to above.

The court properly instructed the jury that, "if you find that the defendant delivered this trunk, knowing its contents to be more than two quarts of spirituous and intoxicating liquors, to a railroad company in the state of Florida, with the intention that it should be shipped and transported by such carrier to Waycross, in Ware county, Georgia, and had it consigned to himself as consignee, that delivery to such railroad company, or other carrier, in Florida, would be delivery to him and possession of such railroad company would be the possession of the defendant. You look to the evidence and see what the truth is." This charge states a pertinent principle of law, and does not contain an expression of OPINION upon the facts of the case.

The court below did not err in instructing the jury, in substance, that if the defendant concealed the nature of the contents of the trunk from the railroad authorities, and they were unaware of the nature of the contents of the trunk, and under those circumstances the railroad company transported it for the defendant, their act in thus transporting the trunk would be the act of the defendant.

The court did not err in refusing to charge the jury that "before you would be authorized to convict the defendant, it would have to be shown by competent evidence that the trunk alleged to have contained whisky was in the actual possession or control of the defendant," inasmuch as the jury might have been led to believe by such instructions that possession by the agents of the railroad company at the time the trunk was being transported in compliance with their duty to transport the same as baggage was not the kind of possession or control which it was necessary to show in order to authorize the verdict of guilty.

A question as to the constitutionality of a law cannot be raised for the first time in a motion for a new trial, where it was not made either by demurrer to the pleadings, or by objections to evidence, or in some other appropriate way pending the trial.

Error from City Court of Waycross; John C. McDonald, Judge.

C. J. Hendry was convicted of violating the prohibition act, and he brings error. Affirmed.

Atkinson, J., dissenting in part.

Question as to constitutionality of law cannot be raised for first time in motion for new trial, where not raised by demurrer, or objections to evidence, or some other way, pending trial.

C. L. Redding and J. L. Crawley, both of Waycross, for plaintiff in error.

A. B. Spence, Sol., and David J. Lewis, both of Waycross, for the State.

BECK J.

C. J Hendry was tried in the city court of Waycross upon an accusation charging him with the offense of a misdemeanor. In the first count it is charged that on the 10th day of June, 1916, he did have in possession more than two quarts of spirituous liquors; in the second count it is charged that on the day alleged he kept for sale certain spirituous liquors; and in the third count it is charged that on the day stated he did, "in violation of the prohibition act of Georgia, approved on the 18th day of November, 1915, ship and transport from Jacksonville, state of Florida, into the state of Georgia and county of Ware, more than two quarts of spirituous liquors and intoxicating liquors within thirty consecutive days, with intent to receive, possess, and have for sale said spirituous and intoxicating liquors, contrary to the laws of said state," etc. Upon the trial the jury returned a verdict of guilty on the third count, acquitting the defendant on the first two counts. Whereupon, after sentence, the...