Woodard v. State

• Decision Date: 03 March 1898
• Citation: 30 S.E. 522,103 Ga. 496
• Parties: WOODARD v. STATE (two cases).
• Court: Georgia Supreme Court

30 S.E. 522

103 Ga. 496

WOODARD v. STATE (two cases).

Supreme Court of Georgia

March 3, 1898

Syllabus by the Court.

1. Where an election has been held in a given county under the provisions of the local prohibition liquor law, embraced in sections 1541 to 1550 of the Political Code, and it has been duly declared that the result was "against the sale," a person indicted under section 451 of the Penal Code, for violating the provisions of this law, cannot, by special plea or otherwise, attack for any reason the validity of the election.

2. The evidence in these cases fully warranted the convictions complained of; the penalties imposed were not excessive; and there was no error in refusing to sanction the petitions for certiorari.

Error from superior court, Morgan county; John C. Hart, Judge.

P. B Woodard was convicted on two indictments of violation of the statute relating to the sale of intoxicating liquors, and he brings error. Affirmed.

J. H Holland, for plaintiff in error.

E. W Butler, H. G. Lewis, Sol. Gen., and Anderson, Felder & Davis, for the State.

LITTLE J.

The plaintiff in error was in two separate bills indicted by the grand jury of Morgan county for the offense of misdemeanor. The misdemeanor charged in the first bill was that on the 28th day of March, 1897, he did sell alcoholic, spirituous, and intoxicating and malt liquors. The second indictment made the same charge, but alleging the offense to have been committed on the 10th day of August, 1897. The two cases were by consent argued together in this court. The bills of indictment were, by the order of the superior court, transferred to the county court of Morgan county; and, on the 13th day of October, the plaintiff in error was tried in that court, and found guilty in each case. In the first case the court sentenced him to pay a fine of $100, and in the latter case one of $300. After judgment and sentence, the plaintiff in error presented his petition for certiorari to the judge of the superior court, basing his application for the issuance of the writ on the grounds, in the first case, (1) because the judge presiding in the county court erred in striking a special plea interposed by the defendant on his trial; (2) because the fine is excessive; and (3) because the verdict is contrary to the evidence, and without evidence to support it. The grounds on which the petition for certiorari in the second case was based are the same, with the exception that in the latter an additional ground of error is assigned to a portion of the charge given by the judge of the county court on the trial of the case. After considering the petitions for certiorari, the judge of the superior court denied the prayer in each case, to which rulings the plaintiff in error excepted, and assigns the same as error. A motion was made in this court to dismiss the writs of error on certain grounds therein assigned. On consideration, we overrule the motion to dismiss, and entertain jurisdiction of the cases on their merits.

1. On arraignment in the county court, plaintiff in error filed in each case a special plea, which alleged "that there is no valid law in said county against the sale of intoxicating liquor in said county; that said indictment is founded on the provisions of the local option law (Pen. Code, § 451), and the provisions of this act are not legally of force in said county, for the reason that the election held in said county on the 6th day of August, 1896, which resulted in carrying said county for prohibition against the sale of intoxicating liquors, was and is null and void, for the reason that said election was held under the provisions of section 1 of the general registration act of December 17, 1894 (Acts 1894, p. 115), and that the tax collector of said county failed to comply with the provisions of sections 4 and 14 of said act, in that said tax collector did not for a period of 50 days prior to the said 6th day of August, 1896, keep the voters' books open for registration at his office at the county site from 9 o'clock a. m. to 4 o'clock p. m. each day, Sundays alone excepted." The county solicitor demurred to this plea, and the court sustained the demurrer, and ordered the plea stricken in each case. It will be noted that the plea admits that an election was held at a given date, under the provisions of the local option law (Pol. Code, §§ 1541-1550) in Morgan county, and that such election resulted in the adoption of such prohibitory laws under the terms of the act. Further than the statements made in this plea, the record contains no evidence of such an election, and the adoption of the prohibitory provisions of our Code. We deem the admissions of the plea sufficient to establish the fact. Were it otherwise, however, there is authority for holding that this court will take judicial notice of things which are public in effect and relations, and ought to be known within its jurisdiction, in accordance with the ruling in the case of Combs v. State, 81 Ga. 780, 8 S.E. 318, where it was held that it is not necessary for the state either to allege in the indictment, or to prove before the jury that such laws are operative in the counties which have adopted them by a vote of the people. So that we find it to be sufficiently shown that the provisions of our Code known as the "Local Option Law" were in force in the county of Morgan on the respective dates named in the bills of indictment against the plaintiff in error.

Were the pleas properly stricken on demurrer? We think so. The effect of these special pleas was to present matter on which the court was asked to determine and adjudicate, as a defense to the charges made, that the laws in question were not properly and legally adopted at the election held in the county of Morgan. In other words, the matter of the pleas presented questions for consideration which went to the validity of the election, notwithstanding its result had theretofore been officially declared. In our judgment, this cannot be done. By section 1545 of the Political Code, it is made the duty of the ordinary of the county where such election has been held to carefully consolidate the returns and decide all questions and contests arising under elections held by virtue of this article; and it is further made the duty of the ordinary, if such election should result against the sale, to publish such result once a week for four weeks, as indicated. It will be noticed that it is not only the duty of the ordinary to publish the result, but to decide all questions and contests arising under the election. We are of the opinion, from the breadth and scope of the power imposed by this section of the Code, that the ordinary was...