Howell v. State

• Decision Date: 13 January 1906
• Citation: 124 Ga. 698,52 S.E. 649
• Parties: HOWELL . v. STATE.
• Court: Georgia Supreme Court

52 S.E. 649

124 Ga. 698

HOWELL .

v.STATE.

Supreme Court of Georgia.

Jan. 13, 1906.

1. Intoxicating Liquors—Illegal Sale — Indictment.

An indictment for the unlawful sale of intoxicating liquor, contrary to the local option liquor law, need not allege that the sale was for a valuable consideration.

[Ed. Note.—For cases in point, see vol. 29, Cent. Dig. Intoxicating Liquors, § 236.]

2. Criminal Law—Instructions—Appeal.

As has frequently been ruled, the failure to charge some other legal proposition applicable to the case is not available for an assignment of error on a charge in itself correct.

3. Same—Instructions.

It was not error for the judge to give in charge to the jury sections 986 and 987 of the Penal Code of 1895, relating to the amount of mental conviction required to warrant a verdict of guilty.

4. Intoxicating Liquors — Illegal Sale— Instructions.

Nor was it error for the court to instruct the jury that the accused was charged with the violation of the local option liquor law, and to read to them section 1548 of the Political Code of 1895, relating to that law, and to charge them that peach brandy is an alcoholic liquor, which, if drunk to excess, will produce intoxication.

[Ed. Note.—For cases in point, see vol. 29, Cent. Dig. Intoxicating Liquors, § 336.]

5. Criminal Law—Instructions.

A correct instruction as to the rules for weighing testimony and reconciling conflicts therein was not rendered erroneous by a failure to charge, in the same connection, the law as to the statement of the accused.

6. Same—Instructions.

The assignment of error upon the instructions as to the evidence of good character was not meritorious.

7. Same.

The long excerpt from the charge, set out in the sixth ground of the amended motion fora new trial, was not "vague, uncertain, and confusing, " nor did the court express therein an opinion as to what had been proved.

8. Criminal Law — Instructions — Phis-oner's Statement.

As to the prisoner's statement, the court read to the jury all of section 1010 of the Penal Code of 1895, except the last sentence. Such instruction was correct, and was not rendered erroneous by the failure of the court to tell the jury, in the same connection, that, if they believed the statement they should acquit the accused, or by the failure to instruct them that they were the exclusive judges of the statement and authorized to give the accused the benefit of any part of it.

9. Same—Instructions as to Verdict.

Where the charge of the court was full, fair, and substantially correct on all the issues in the case, the omission to instruct the jury as to the form of their verdict in the event they should find the accused not guilty was not cause for a new trial, when there was also an omission to instruct them as to the form of their verdict in the event they should find him guilty.

10. Same—New Trial.

"An improper sentence is not a proper subject-matter of a motion for a new trial." Truitt v. State (decided January 12, 1906) 52 S. E. 890.

11. Intoxicating Liquors—Illegal Sale —

Evidence.

The evidence amply warranted the verdict, and the court did not err in refusing to grant a new trial.

(Syllabus by the Court.)

Error from City Court of Sparta; F. L. Little, Judge.

Bill Howell was convicted of violation of a liquor law, and brings error. Affirmed.

Hines & Vinson, for plaintiff in error.

R. W. Moore, for the State.

FISH, C. J. An indictment against Bill Howell charged that on a designated day, in a given county, he "did unlawfully sell" spirituous, malt, alcoholic, and intoxicating liquors, other than domestic wines, to named persons, contrary to the laws of the state, etc. The indictment was demurred to on the ground that it failed to charge that anything of value was paid for the liquor. The demurrer was overruled, and the accused excepted pendente lite. On the trial there was a verdict of guilty. The accused moved for a new trial, which was refused, and the case is here upon exceptions to the overruling of the demurrer and the motion for a new trial.

1. Section 451 of the Penal Code of 1895 declares: "Any person violating any provision of the local option law as embraced in sections 1541 to 1550, inclusive, of the Civil Code, shall be guilty of a misdemeanor." Section 1548 of the Political Code of 1895 provides: "If a majority of the votes cast at any election, held as by this chapter provided, shall be against the sale, it shall not be lawful for any person within the limits of such county to sell or barter for valuable consideration, either directly or indirectly, or give away to induce trade at any place of business, or furnish at any other public places, any alcoholic, spirituous, malt, or intoxicating liquors, or intoxicating bitters or other drinks which if drunk to excess will produce intoxication." While the statute makes it penal "to sell or barter for valuable consideration" the liquors therein described, we are clearly of opinion that the words "for valuable consideration" are merely surplusage. The manifest purpose of the statute is to make unlawful the sale or barter, either directly or indirectly, or the giving away to induce trade at any place of business, or the furnishing at any other public place, in a prohibition county, of the liquors mentioned. "To sell property is, in the strict signification of the word 'sell, ' to transfer it from one to another in consideration of a price paid or agreed to be paid in current money. And the word 'sold' imports a consideration of price." 25 Am. & Eng. Enc. L. 284. Bouvier's Law Diet, defines a "sale" to be "an agreement by which one of two contracting parties called the seller, gives a thing and passes the title to it, in exchange for a certain price in current money, to the...