Williams v. State

• Decision Date: 19 April 1899
• Citation: 33 S.E. 641,107 Ga. 693
• Parties: WILLIAMS. v. STATE.
• Court: Georgia Supreme Court

33 S.E. 641

107 Ga. 693

WILLIAMS.

v.STATE.

Supreme Court of Georgia.

April 19, 1899.

INTOXICATING LIQUORS—ILLEGAL SALE—AFFIDAVIT—VERDICT—EVIDENCE.

1. An affidavit which charges the accused simply with the offense of committing a misdemeanor, at a certain time and in a certain county, is sufficient to support an accusation in the county court of such county charging the accused specifically with selling liquors, and also with contracting to sell, taking orders for, and soliciting the sale of, such liquors.

2. Under section 428 of the Penal Code, one accusation may be framed against the accused, containing two counts, one charging the sale and the other soliciting orders to sell liquors in a certain county where the sale of such liquors isprohibited by law; and a general verdict of guilty is not illegal because of a failure by the jury to specify upon which count it is founded.

3. The evidence in this case failing to show that the accused either sold, or solicited orders for the sale of, liquors, a judgment of guilty, rendered by the judge of the county court, was contrary to law and the evidence, and the judge of the superior court erred in not sustaining the certiorari thereto.

(Syllabus by the Court.)

Error from superior court, Wilkes county; S. Reese, Judge.

Edmund Williams was convicted of an illegal sale of liquors, and brings error. Reversed.

Colley & Sims, for plaintiff in error.

R. H. Lewis, Sol. Gen., Harrison & Bryan, and F. W. Gilbert, for the State.

LEWIS, J. 1. Edmund Williams was tried in the county court of Wilkes county upon an accusation containing two counts, —the first charging him with selling spirituous, malt, and intoxicating liquors in Wilkes county on the 31st of December, 1898; and the second charging him with contracting to sell, taking orders for, and soliciting the sale of, such liquors at the time and place mentioned. This accusation was based upon an affidavit of the prosecutor, which simply charged the defendant with committing the offense of a misdemeanor. The accusation was demurred to on the ground of insufficiency in the affidavit, in that it did not specify the particular misdemeanor of which the accused was guilty, and the overruling of this demurrer is assigned as error in the petition for certiorari which was brought to the superior court after the conviction of the defendant. Under the ruling of this court in the case of Dickson v. State, 62 Ga. 583, we think the affidavit sufficient as a basis of the accusation. It was there decided that the accusation must be specific and particular, but the affidavit need not be more so than Is necessary to uphold the warrant.

2. It is further contended by counsel for plaintiff in error that the accusation was fatally defective, in that it charged against the defendant two distinct offenses. It is conceded that this prosecution is under section 428 of the Penal Code, as amended by the act of December 9, 1897. See Acts 1897, p. 39. The purpose of the act is to prevent whisky dealers from selling, or contracting to sell, taking orders for or soliciting, personally or by agent, the sale of, intoxicating liquors in a "dry" county, town, or district. The law of pleading is much more rigid in this particular in regard to felonies than it is in regard to misdemeanors; but, even In felony cases, there may be two or more counts joined in the same indictment, charging the defendant with the same species of felony. See Davis v. State, 57 Ga. 67. Selling liquor in a "dry" county, and soliciting or taking orders for such sale, certainly involves the same species of misdemeanor made a crime by a single act of the legislature. There can be no merit, therefore, in the contention that this accusation is fatally defective, in that it contains a charge of two distinct and separate offenses. In the case of Lynes v. State, 46 Ga. 208, it is decided that, "in cases of misdemeanor, the joinder of several offenses in the indictment will not. in general, vitiate the proceedings at any stage of the prosecution." See, also, 1 Bish. Cr. Proc. 452; Clarke, Cr. Proc. 1107. Nor is there anything in the position of counsel for plaintiff in error that a general verdict on such an accusation is illegal, or that the prosecuting attorney, when called upon, should elect on which charge he will proceed. In the case of Dohme v. State, 68 Ga. 339, it appeared that an...