Tutton v. State , 28 Ga. App. 152 ( 1922 )

Stephens, J.

This was a proceeding in tbe city court of Buford, instituted by the State of Georgia against Carl Tutton wherein it was sought to condemn an automobile in which the defendant was traveling, upon the ground that the automobile was at the time being “used” upon a public road of this State in “conveying” certain liquors, the sale or possession of which was prohibited by law. The evidence was undisputed to the effect that the automobile belonged to the defendant, and that he was operating it along a public road of the State, and at the time had in a pocket about his person a quart-bottle filled with whisky; the defendant stating, at the time of tbe seizure of his automobile by the officers, that his wife was sick and that he had gotten the whisky for her and was carrying it to her. The evidence was also undisputed to the effect that no other whisky was found in the automobile. The trial judge directed a verdict for the plaintiff and rendered a judgment on the verdict found, ordering that the automobile be condemned and sold as provided by law. The defendant brought the case to the superior court upon certiorari, excepting to the verdict and judgment upon the general grounds and also upon the ground that the judge erred in directing a verdict for the plaintiff. Certain exceptions raising constitutional questions are abandoned. The certiorari was overruled, and the judgment is before this court for review.

The sole question to be here determined is, was the evidence sufficient under the. law to authorize a verdict for the defendant ? If so, the verdict for the plaintiff was improperly directed. The statute under which this proceeding was had reads as follows: “ All vehicles and conveyances of every kind and description which are used on any of the public roads or private ways of this State, and all boats and vessels of every kind and description which are used in any of the waters of this State in conveying any liquors or beverages, the sale or possession of which is prohibited by law, shall be seized by any sheriff or other arresting officer.” (Ga. L. Ex. Sess., p. 16, 17.) To properly determine the question before us, it is necessary to ascertain the meaning of the words “ used ” and “ in conveying.” This statute, being penal, is to be construed strictly. It is not to be construed as prohibiting the mere existence of such liquor in a moving vehicle of the class designated, or the mere conveying of such liquors in such moving vehicles along such prohibited route, without some intentional human act causing or bringing about such transportation. The statute penalizes the instrumentality or the vehicle transporting such prohibited liquor along such prohibited road only when such vehicle is “used . . in conveying” such liquor. The word “used” is an active, transitive verb, and involves in its definition some action or purpose on the part of the person using the vehicle. Webster’s International Dictionary defines the word “use” as meaning “to make use of,” “ to employ,” “ to convert to one’s serviceand the Standard Dictionary defines the term as meaning “ to employ for the accomplishment of a purpose.”

Since the automobile can not be subject to condemnation solely upon the ground that it itself conveyed from one point to another prohibited liquor, but only because of some additional or affirmative intentional act on the part of the person operating the automobile or directing its operation, it is therefore subject to condemnation onty, when, in addition to conveying such liquor, it is “ used . . in conveying” such liquor. An automobile would not be subject to condemnation when used by the owner in traveling along a public road, although it at the same time, was, without the owner’s knowledge, actually conveying liquor which some one had smuggled into the automobile. The mere copulation of the' two acts of using the automobile and of its conveying liquor does not constitute a violation of the statute. It is not the separate acts of .using and conveying that constitute the offense, but the act of using “in conveying,” which means using for the purpose of, or with the intention of, conveying such liquor. Adopting this construction of the statute, it is therefore necessary in a particular case to ascertain the circumstances surrounding the particular transportation of liquor, and to determine therefrom whether or not the vehicle at the time is used for the purpose of transporting such liquor. In determining this question it is proper to consider any fact which would indicate the purpose for which the vehicle was used. Where the liquor which is actually transported in a particular vehicle at a particular time is of such a small, insignificant quantity as would indicate that it would not be necessary to use such a vehicle in transporting such liquor, this fact could be considered in determining whether the particular vehicle was at the time “used . . in conveying” the liquor — that is, for the purpose of conveying the liquor. Or, irrespective of the insignificant quantity of the liquor .actually transported, the fact that the particular trip, or the use of the vehicle at the time, was for the purpose of conveying the particular liquor from, one point to another along a prohibited route, would authorize the inference that the vehicle was at the time “used . . in conveying,” or for the purpose of conveying the liquor, however small the amount. Of course, where the liquor transported is too heavy or too bulky to be transported otherwise than in a vehicle, the inference would at least be authorized, if not demanded, that the vehicle transporting the liquor was “used . . in conveying” the liquor.

The mere fact that the liquor actually transported in the vehicle was on the person of the occupant of the vehicle is not the factor determining that the vehicle was not used in conveying the liquor; but the mere fact that the liquor was in a container of such small dimensions that it would not be necessary to use such a vehicle in conveying the liquor is evidence to be considered in determining the use to which the vehicle was put, in the absence of other evidence authorizing the inference that the vehicle was at the time used in conveying, or for the purpose of conveying, the liquor in question. We are therefore of the opinion that the evidence did not demand a finding for the State, condemning the defendant’s automobile upon the ground that it was used in conveying prohibited liquor. That the wife of the defendant was sick and that he was carrying this liquor to her does not, without more, demand a finding that this particular trip was made for the purpose of transporting this liquor, and that therefore the automobile was at the time used in conveying the liquor.

The ruling here made is not in conflict with the decision of this court in the case of Crapp v. State, 23 Ga. App. 257 (98 S. E. 174). In that ease it appeared from the evidence that the defendant had a quart of whisky in a grip in his automobile, and that he was traveling along the road for the purpose of going to visit some of his people, that he had the whisky along with him for his own use, and was not hauling it for the purpose of delivering it at any place or to any person, and was not making the trip for the purpose of carrying the whisky anywhere. The court, over exceptions that the verdict was without evidence to support it, affirmed the verdict rendered for the plaintiff, condemning the defendant’s automobile. While in the headnote in that case it is stated that the evidence demanded the verdict in favor of the plaintiff, this statement was mere obiter and was not necessary to the decision rendered. This court in that case properly sustained the refusal of the defendant’s request to charge the jury, that if they should find that the defendant had some whisky with him, and that the transportation of it in the car was merely incidental to the trip, that it was not primarily his purpose to convey the whisky, but that he took the whisky along with him for his own use, and that it was not his intention to carry the whisky to some other point, the jury should find in favor of the defendant. The court properly refused to peremptorily instruct the jury to find in favor of the defendant upon such a theory of the evidence, since such facts did not necessarily negative the inference that the automobile was being used in conveying the whisky.

In the instant case the trial judge erred in directing a verdict, and it was therefore error on the part of the judge of the superior court to overrule the defendant’s certiorari.

Judgment reversed.

Hill, J., concurs. Jenkins, P. J., dissents.