Capitol Distributing Co. v. State , 83 Ga. App. 303 ( 1951 )

Townsend, J.

(After stating the foregoing facts.) Fulton County is a wet county, a fact of which the courts will take judicial cognizance. Leonard v. State, 204 Ga. 465 (4-a) (50 S. E. 2d, 212); Combs v. State, 81 Ga. 780 (8 S. E. 318); Bass v. State, 1 Ga. App. 790 (57 S. E. 1054); Woodard v. State, 103 Ga. 496 (30 S. E. 522); Oglesby v. State, 121 Ga. 602 (49 S. E. 706); Central of Ga. Ry. Co. v. Gwynes, 153 Ga. 606 (113 S. E. 183). .The indictment in this case is drawn under the provisions of the act of 1938 to legalize and control alcoholic liquors and beverages (Ga. L. 1937-38, page 103 et seq.) as codified in Chapter 58-10 of the Code Supplement. Code (Ann. Supp.) § 58-1068 provides that, “Nothing in this Chapter shall be construed as giving any person a right to sell spirituous liquors as herein defined, but the manufacture, sale and distribution of spirituous liquors is declared to be a privilege in this State and not a right.” The sale of liquor is therefore a misdemeanor under the provisions of Code (Ann. Supp.) § 58-1069 and § 58-1070 providing in substance that the violation of any of the provisions, rules and regulations of Chapter 58-10 shall be a misdemeanor unless it is lawfully done, that is, done in accordance with one or more of the only three provisions of the law setting out how liquor may legally be sold in a wet county. These provisions are embodied in Code (Ann. Supp.) § 58-1024, regulating distiller’s licenses, § 58-1025, regulating wholesaler’s licenses, and § 58-1026, regulating retail licenses. Any sale which is in a wet county and is made in accordance with one of these three Code sections is legal. Any sale not so made is illegal. The indictment expressly states that the accused do not have retailers’ licenses. It is silent as to whether they have wholesalers’ licenses or manufacturers’ licenses. It charges that the persons to whom the sales were made, whether known or unknown, were not the holders of wholesale licenses and not the holders of retail licenses. The indictment is silent as to whether or not these persons were holders of manufacturers’ licenses.

The indictment is therefore ambiguous in that it is not drawn in accordance with any of the three licensing provisions of the act, and it is accordingly impossible to say with any certainty whether the State intended to charge a violation of a wholesale license, a violation of a license to manufacture (which allows sales in bulk to other manufacturers or wholesalers) or a sale without a license of any kind. Further, accepting all the allegations of the indictment as true, it does not appear that the sales charged were unlawful, since the indictment fails to allege that either the accused or the purchasers did not have a distiller’s license as provided by Code (Ann. Supp.) § 58-1024. Brief of counsel for the State contains the following statement: “The indictment in the case at bar charges an unlawful sale of whisky a sale not authorized by Chapter 58-10 of the Code; a sale which could not have been legally licensed by the State.” However, the sale alleged in the indictment could have been legally licensed by the State, under the provisions of Code (Ann. Supp.) § 58-1024, as above pointed out, and for this reason the indictment is insufficient.

An indictment which states the offense in the language of the Code, or so plainly that the nature of the offense charged may be easily understood by the jury, is a good indictment. Code, § 27-701. If not stated in the language of the Code, it must allege every essential element of the crime charged'. O’Brien v. State, 109 Ga. 51 (35 S. E. 112); Mathews v. State, 16 Ga. App. 312 (85 S. E. 284). Where a commodity may be legally sold under a license, an indictment alleging the unlawful sale of such commodity must negative the fact that the accused had a license, under the terms of which the sale would have been legal. See Plemmons v. State, 58 Ga. App. 131 (198 S. E. 104); Carter v. State, 60 Ga. App. 758 (5 S. E. 2d, 244); Mathis v. State, 93 Ga. 38 (18 S. E. 996); Elkins v. State, 13 Ga. 435; State v. Haden, 15 Mo. 447; State v. Holder, 133 N. C. 709 (45 S. E. 862).

This does not mean that it is necessary to the validity of the indictment that every legal method for the making of a sale of intoxicating beverages in a wet county must be separately and explicitly negatived. An indictment for the unlawful sale of spirituous liquors in a wet county of this State, in order to describe the crime with legal sufficiency, must either allege the unlawful manner in which the sale was made, or it must allege a sale and negative all lawful ways for such sale to be consummated. The indictment here fails in both these respects. It does not point out the particular unlawful manner in which the liquor was sold, nor does it negative a lawful manner in which the sale could have been made, which is by virtue of a distiller’s license.

It follows that the trial court erred in overruling the general demurrer which each of the defendants interposed to the indictment.

Judgment reversed.

Gardner, J., concurs. MacIntyre, P. J., concurs specially.