Davidson v. State , 68 Ga. App. 166 ( 1942 )

1. The provisions of Code § 58-107, "The keeping of the liquors or beverages mentioned in section 58-101, or any of them, in any building not exclusively used for a dwelling, shall be prima facie evidence that they are kept for sale or with intent to dispose of same contrary to the law," are still of force in this State in those counties which have not by vote legalized the sale of intoxicating liquor in accordance with the provision of the act of February 3, 1938 (Ga. L. Ex. Sess., 1937-1938, p. 103). It therefore follows that Code § 58-107, which was codified from the act of 1915 (Ga. L. 1915, Ex. Sess., p. 82), is still in effect and operative in "dry" counties.

2. The evidence sustained the verdict for the reasons assigned in the second division of the opinion.

DECIDED SEPTEMBER 18, 1942. REHEARING DENIED OCTOBER 14, 1942. The defendant was convicted of the illegal sale of intoxicating liquors. His motion for new trial was overruled and he excepted.

The evidence in substance showed: Two State revenue officers rode to the place of business of Davidson. They gave a signal and a negro boy came out. The officers instructed the boy to bring a half-pint or a pint of whisky and two coca-colas. The boy returned to the store, passed through the front room and disappeared, whereupon one of the officers went into the store and observed the boy re-entering the front room from an adjoining room. In his hand was a bottle of whisky which was placed on a tray. The boy was handed a dollar by the officer, the lady behind the counter deducted 75 cents for the whisky, 10 cents for the coca-colas, and returned 15 cents. The whisky and the coca-colas were then carried by the boy to the car. There was no evidence to show that Davidson was at the place of business. The place was admittedly owned by Davidson, in McDuffie County, which is a "dry" county. The defendant, in his statement, contended that he was not there, and that he knew nothing of the sale of intoxicating liquors being made at his place. At the time of the transaction there were in the main room a lady and a small girl, besides the lady behind the counter. Neither of the ladies was sworn as a witness for either the defendant or the State. 1. It is contended that the court erred in charging the provisions of Code § 58-107: "The keeping of the liquors or beverages mentioned in section 58-101, or any of them, in any building not exclusively used for a dwelling, shall be prima facie evidence that they are kept for sale or with intent to dispose of same contrary to the law." It is contended that since this section was enacted in 1915, it was expressly repealed by the act of 1938, supra (Code § 58-1073): "It shall not be unlawful for any person to have and possess for use and not for sale, in any county of the State, one quart of the liquors and beverages described in this chapter, which may have been purchased by the person for use and consumption from a lawful and authorized retailer and properly stamped, and this section shall be construed to repeal any and all laws in conflict with this section and chapter as herein expressed." This contention is not tenable. Code Ann. § 58-1078 provides: "It is the purpose and intent of section 58-1077 to maintain the present prohibition law against liquor and alcoholic beverages in those counties of this State not specially exempted from the provisions of the prohibition law under this chapter; and to provide for the trial and conviction of persons guilty of selling or possessing such liquor in such counties, as is now provided by law unless exception is made herein, prior to the passage of this chapter, and it is for the purpose and intent of said section to provide that the prohibition law is not repealed in Georgia, except in the counties which have by a majority vote voted this chapter into operation." In this connection seeJackson v. State, 64 Ga. App. 648 (13 S.E.2d 898); alsoBarfield v. State, 59 Ga. App. 383 (3) (1 S.E.2d 47), which holds: "The law as to the possession of whisky in counties of this State which have not legalized the sale thereof is still a general law as to those counties." The judge did not err in charging Code § 58-107, under the facts of this case.

2. As to the general grounds, counsel cites Smith v.State, 5 Ga. App. 834 (63 S.E. 928): "Ordinarily, where intoxicating liquors are found in a person's place of business, an inference that he is guilty of a violation of the prohibition law, in keeping such liquors at his place of business, may arise. But where the uncontradicted evidence shows that the liquor was brought into his place of business and hidden therein without his knowledge, by one not connected with the place of business, this inference of guilt would cease to be of sufficient evidentiary value to authorize a conviction." It will be noted in the Smith case that the uncontradicted evidence showed that the whisky was brought into the defendant's place of business and hidden therein without his knowledge. Counsel also cites Rhoddenberry v. State,50 Ga. App. 378 (178 S.E. 170): "Where a conviction of having, controlling, and possessing intoxicating liquors is based on evidence of acts done without the knowledge of the defendant, by a person not connected with her or her place of business as agent, partner, clerk, or otherwise, it is unauthorized." In theRhoddenberry case the evidence did not show that the person who had sold the liquor was connected with the defendant or her place of business as agent, partner, clerk, or otherwise. In the instant case the jury was authorized to find that the negro boy was the agent of the defendant, employed in and about the place of business for the purpose of selling liquor, and the jury so found. See in this connection Lokey v. Davis, 194 Ga. 175 (21 S.E.2d 69), and Davidson v. Davis, 194 Ga. 178 (21 S.E.2d, 71).

The court did not err in overruling the motion for new trial on the general grounds for any reason assigned.

Judgment affirmed. Broyles, C. J., and MacIntyre, J., concur.