Tooke v. State
| Decision Date | 08 July 1908 |
| Docket Number | 1,204. |
| Parties | TOOKE v. STATE. |
| Court | Georgia Court of Appeals |
Syllabus by the Court.
Before this court is authorized or required to certify any question to the Supreme Court on the ground that it is a constitutional question, it must be specifically made in the record, and must also be necessary to the proper determination of the case.
(a) An allegation in a demurrer to an indictment that the statute on which the indictment is based deprives the defendant of his life, liberty, and property without due process of law, and is therefore violative of the properly designated constitutional provision on that subject, is not sufficiently specific, unless it points out how or wherein such deprivation takes place.
(b) A party cannot raise a constitutional question in a case by placing a factitious or incorrect interpretation upon a law and basing the alleged unconstitutionality on the effect of such an interpretation.
(c) Whether a statute is or is not unconstitutional must be determined according to the construction placed upon it by that court having final power to construe it.
(d) As to the construction of all criminal statutes in this state (excepting only certain cases arising under statutes creating felonies punishable by death) the Court of Appeals is the final arbiter.
A single accusation or indictment may include therein, in separate counts, any number of distinct misdemeanors of the same nature.
[Ed Note.-For cases in point, see Cent. Dig. vol. 27, Indictment and Information, §§ 419-421.]
(a) It is permissible to join one or more counts charging violations of the general prohibition law, which went into effect January 1, 1908, with counts charging violations of such laws regulating or prohibiting the sale, etc., of intoxicating liquors as may have been in force in the particular venue of the trial prior to that date and within the period prescribed by the statute of limitations.
[Ed Note.-For cases in point, see Cent. Dig. vol. 27, Indictment and Information, §§ 419-421.]
(b) Persons may be prosecuted and convicted for violations occurring prior to January 1, 1908, of those laws which were suspended or repealed by the enactment of the general prohibition law.
A plurality of counts in an indictment may be occasioned by the charging of the same criminal transaction as having been committed in a number of different ways, or by the charging of a number of distinct transactions of the same general nature. The courts disregard the form, and look to the substance in determining the rights of the parties under the respective methods of procedure.
[Ed Note.-For cases in point, see Cent. Dig. vol. 27, Indictment and Information, §§ 350-371.]
(a) Upon an indictment containing more than one count, all charging misdemeanors, a general verdict of guilty is to be construed as convicting the defendant of each and every separate criminal transaction alleged throughout the indictment.
[Ed Note.-For cases in point, see Cent. Dig. vol. 14, Criminal Law, §§ 2098, 2099.]
(b) If by the indictment, the defendant is prosecuted for only one offense, though it contains a number of counts in which the method of the commission of this offense is variously stated, a general verdict of guilty will be upheld against the contention that it is contrary to the evidence if any of the counts is supported by the proof.
[Ed. Note.-For cases in point, see Cent. Dig. vol. 14, Criminal Law, §§ 2098, 2099.]
(c) If, by the indictment, the defendant is prosecuted for several distinct offenses set forth in its various counts, a general verdict of guilty cannot be upheld unless there is sufficient proof to justify a conviction under each and all of them.
(d) The jury may legally acquit the defendant as to some of the counts and convict him as to others.
[Ed. Note.-For cases in point, see Cent. Dig. vol. 14, Criminal Law, §§ 2098-2101.]
(e) Where the plurality of counts is occasioned by the joining of more than one distinct misdemeanor, the better practice is to require the jury to render a separate verdict as to each count contained in the indictment, and not specifically abandoned by the state's counsel or withdrawn by the court from the consideration of the jury. In a trial upon such an indictment the court should not instruct the jury that, if they should find the defendant guilty under any of the counts, they should render a general verdict of, "we, the jury, find the defendant guilty," but, on the contrary, should instruct them that they should return that form of verdict only in the event they should find the defendant guilty as to each and every criminal transaction with which he stood charged.
Under the general prohibition law of this state (Acts 1907, p. 81), it is criminal for any person to keep or furnish any intoxicating liquor at any "public place." The phrase "public place" as here used is to be given a relative meaning; and a place may be public during some hours of the day and private during others.
(a) The phrase "public place," as used in the prohibition law, by a broad, general, and not wholly exhaustive definition, includes any place which from its public character members of the general public frequent, or where they may be expected to congregate at any time as a matter of common right, also any place at which, even though it is privately owned or controlled, a number of persons have assembled through common usage or by general or indiscriminate invitation, express or implied. It excludes those places which, though publicly owned, are devoted to a private use, and are not open to the access of the public; also those places privately owned or controlled from which the indiscriminate public is generally excluded, notwithstanding that at a particular time in question a number of persons may have congregated there, if the congregation is the result of special invitation for that occasion alone.
(b) A town guardhouse relatively to a prisoner confined in a cell therein with a sole companion is not a public place.
(c) A person's residence primarily is not a public place, but it may become so through the use to which the owner devotes it.
[Ed. Note.-For other definitions, see Words and Phrases, vol. 6, pp. 5806-5812; vol. 8, p. 7773.]
Upon a trial for the violation of the several provisions of the general prohibition law, evidence that the defendant received frequent shipments of liquor; that he had a large amount on hand in his home; that in his house there were generally a number of persons singing, carousing, and otherwise acting disorderly-is admissible against the objection of irrelevancy.
[Ed. Note.-For cases in point, see Cent. Dig. vol. 29, Intoxicating Liquors,§§ 293, 295.]
The fact that evidence against a defendant was obtained through an illegal search of his house will not render it incompetent or inadmissible.
[Ed. Note.-For cases in point, see Cent. Dig. vol. 14, Criminal Law, § 876.]
Error from City Court of Oglethorpe; R. L. Greer, Judge.
Charlie Tooke was convicted of selling intoxicating liquor in a county wherein the sale thereof was prohibited, etc., and he brings error. Reversed.
An allegation in a demurrer to an indictment that the statute on which the indictment is based deprives defendant of his life, liberty, and property without due process of law, and is therefore violative of Const. art. 1, § 1, par. 3, is not sufficiently specific, where it fails to point out how or wherein such deprivation is made, to present a constitutional question, the certification of which is required to the Supreme Court.
The defendant was convicted on an accusation charging (1) that on the 1st day of February, 1908, he did "sell for a valuable consideration certain spirituous, malt, or intoxicating liquors, in the county of Macon, state of Georgia, said county being then and there a county wherein the sale of such liquors was at the time of said sale prohibited by law;" (2) "at the time and place aforesaid unlawfully and with force and arms did sell and barter for a valuable consideration certain alcoholic, spirituous, and intoxicating liquors, or intoxicating bitters, or other drinks which if drunk to excess will produce intoxication;" (3) "did at the time and place aforesaid then and there keep, at a public place in said county, viz., at the jail or guardhouse of the town of Oglethorpe, on the public square of the county of Macon, certain alcoholic, spirituous, malt, or intoxicating liquors or intoxicating bitters or other drinks which if drunk to excess will produce intoxication;" (4) "did at the time and place aforesaid furnish to one David Hall certain alcoholic, spirituous, malt or intoxicating liquors or intoxicating bitters or other drinks, which, if drunk to excess, will produce intoxication, at a public place in said county, viz., at the guardhouse or jail of the city of Oglethorpe upon the public square of the county of Macon;" (5) "at the time and place aforesaid did keep on hand at his place of business certain alcoholic, spirituous, malt, or intoxicating liquors, or intoxicating bitters or other drinks, which, if drunk to excess, will produce intoxication."
Upon arraignment he filed a demurrer containing the following grounds: ...
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Tooke v. State
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...such tax was unconstitutional" --is too general to raise a constitutional question for certification to the Supreme Court. Tooke v. State, 4 Ga.App. 495, 61 S.E. 917. from Superior Court, Hancock County; H. G. Lewis, Judge. Action by Hancock County against E. C. Loque and others. Judgment f......