Smith v. State

• Decision Date: 17 November 1898
• Citation: 32 S.E. 127,105 Ga. 724
• Parties: SMITH v. STATE.
• Court: Georgia Supreme Court

32 S.E. 127

105 Ga. 724

SMITH v. STATE.

Supreme Court of Georgia

November 17, 1898

Syllabus by the Court.

1. A former acquittal of the charge of retailing spirituous liquor without license is not a good plea in bar of a prosecution for keeping open a tippling house on the Sabbath day although the evidence for the state be the same in both cases.

2. The evidence warranted the verdict, and there was no error in overruling the motion for a new trial.

Error from criminal court of Atlanta; J. D. Berry, Judge.

Mitchell Smith was convicted of violating the liquor law, and brings error. Affirmed.

The following is the official report:

On September 18, 1898, Smith was convicted in the criminal court of Atlanta upon an accusation charging him with keeping open a tippling house on the Sabbath day. Upon the trial, Dobbins a policeman, testified that on Sunday, July 31, 1898, he gave Jessie Isaac a marked quarter, and that she went, under his instructions, to a high fence in rear of defendant's house, and called him out into the back yard, and asked him for whisky; that defendant went into his house, and soon came out with a half-pint bottle of corn whisky, and handed it to Jessie, and she gave the defendant the marked quarter, and she gave him a nickel; that witness was concealed, and heard and saw all this, and that it all occurred in Fulton county that witness at once took the bottle from Jessie, entered defendant's house, and arrested him; that three men were found in the house; that defendant permitted witness to make a search of the house, and that he found some bottles and jugs with whisky in them in a dish cupboard, and also a bottle in a trunk. Jessie Isaac testified that she got the whisky from the defendant, as stated by Dobbins; that she told defendant that she was sick, and wanted to buy some whisky; that she bought whisky there from the defendant one week before, on a Saturday night. Rhodes testified that he was in defendant's house when he was arrested on Sunday, July 31, 1898, and took drinks there that day. Witness ordered four drinks. He took rye whisky; others took corn. Defendant poured it out of bottles. Witness had been there once or twice on Sunday. Was there when Jessie Isaac called defendant out, and saw defendant deliver a bottle to her. Witness went there only on Sunday. Peek testified: That he was at defendant's house on Sunday, July 31, 1898. That he got no whisky from defendant on that day. "We had not been there long enough. I got one drink there before on a Sunday." Defendant filed a plea of autrefois acquit. The record shows that on August 1, 1898, defendant was tried in the criminal court of Atlanta upon an accusation charging that on July 31, 1898, in Fulton county, this state, he retailed whisky and other spirituous liquors without license; that on this former trial the state introduced the same witnesses as in the last trial; that their testimony was identical in both trials, and that defendant was acquitted in the first trial.

John W. Cox and D. R. Keith, for plaintiff in error.

Jas. F. O'Neill, for the State.

FISH J.

1. One of the assignments of error in the motion for a new trial was that the court erred in failing to charge the jury upon the plea of former acquittal. We do not think there is any merit in this exception. The offenses of retailing liquor without license, and keeping open a tippling house on the Sabbath day, are separate and distinct. Neither of them is a necessary element in, and an essential part of, the other. Either of them may be...