Garrett v. State , 71 Ga. App. 449 ( 1944 )

The accusation charged that the defendant "did then and there, unlawfully and with force and arms, have, control, and possess more than one quart of spirituous alcoholic liquors, distilled alcoholic liquors, whisky, rum, brandy, and gin, the container of which did bear the revenue stamps required by the State of Georgia." This is a charge of a general statutory crime. The offense is complete as it is alleged, and it is not necessary, in farming the accusation, to negative the conditions under which the force of the statute may be avoided. If the possession of more than one quart of whisky should be in a "wet county," where the defendant is excepted from the operation of the general prohibition law, this would be a matter of a plea and defense to a general statutory crime. The accusation was not subject to general or special demurrer. Carter v. State, 60 Ga. App. 758 (5 S.E.2d 244); Kitchens v. State, 116 Ga. 847 (43 S.E. 256).

DECIDED APRIL 8, 1944. REHEARING DENIED JULY 24, 1944. 1. It is provided in the act approved February 3, 1938 (Ga. L. Ex. Sess., 1937-1938, p. 103, sec. 27, Ga. Code Ann. § 58-1077), that: "Any person found in possession or control of more than one quart of spirituous, vinous, or alcoholic liquor, in any county of this State (except such counties in which liquor may be legally sold or transported under the terms of this chapter) shall be guilty of a misdemeanor and, upon conviction, punishable as in cases of misdemeanors." Sections 4 and 27 of the act (Ga. Code Ann., §§ 58-1078), make an exception in which it would be lawful for a person to possess more than one quart of intoxicating liquor when the possession is in a county which has voted "wet," as provided by law, and becomes what is known in common parlance as a "wet county." The accusation charged a crime in violation of a general law created by the prohibition statute of this State, and conforms substantially to the statute, for it is not necessary that an accusation, based on a violation of this general law, should aver that the accused does not belong to the class of persons who may lawfully possess intoxicating liquor in a "wet county," and thus are excepted from the operation of the general law.

If the possession of more than one quart of such prohibited liquors be in a "wet county," the burden is on the defendant to show that fact, and thus show that he comes within one of the exceptions to the general law. The accusation charged that the defendant "did then and there, unlawfully and with force and arms, have and control and possess more than one quart of spirituous alcoholic liquors, distilled alcoholic liquors, whisky, rum, brandy, and gin, the container of which did bear the revenue stamps required by the State of Georgia." Thus the accusation was not subject to general or special demurrer.Kitchens v. State, supra; Carter v. State, supra;Hennon v. State, 62 Ga. App. 485 (7 S.E.2d 921); Smith v. State, 62 Ga. App. 484 (8 S.E.2d 94); Frierson v.State, 67 Ga. App. 829 (4) (21 S.E.2d 438).

2. All the essential elements of the crime charged were proved, and there was no sufficient proof that the defendant belonged to any class of persons excepted from the general provisions of the act. Frierson v. State, supra.

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

ON MOTION FOR REHEARING.