Cooley v. State , 152 Ga. 469 ( 1922 )

Hines, J.

(After stating the foregoing facts).

1. This court has held that the eighteenth amendment to the constitution of the United States and. the national prohibition act known as the Volstead act do not supersede and repeal the Georgia prohibition act of March 28, 1917. Jones v. Hicks, 150 Ga. 657 (104 S. E. 771, 11 A. L. R. 1315); Scroggs v. State, 150 Ga. 753 (105 S. E. 363); Edwards v. State, 150 Ga. 754 (105 S. E. 363); Smith v. State, 150 Ga. 775 (105 S. E. 364); Neville v. State, 152 Ga. 205 (108 S. E. 802). We see no reason to change the position taken by this court in the above cases. This disposes of the question raised by the defendant’s demurrer to the accusation in this case.

2. The most serious question presented is whether the conviction of the defendant in the United States court for the eastern division of the southern district of Georgia constituted a bar to his trial and conviction on the accusation in the city court of Savannah. The constitution of this State declares that “No person shall be put in jeopardy of life, or liberty, more than once for the same offense, save on his or her own motion for a new trial after conviction, or in case of mistrial.” Civil Code, § 6364. Has the defendant been put in jeopardy twice for the same offense?

From the nature of our dual form of government the same act may be an offense against the laws of the United States and of this State, may be punished under both laws, and conviction and punishment under the Federal law is no bar to conviction and punishment under the state law. Fox v. Ohio, 5 How. (46 U. S.) 410, 433 (12 L. ed. 213); U. S. v. Marigold, 9 How. (50 U. S.) 560 (13 L. ed. 257); U. S. v. Amy, 24 Fed. Cas. 792; Moore v. Illinois, 14 How. 14 (14 L. ed. 306); Cross v. N. C., 132 U. S. 131 (10 Sup. Ct. 47, 33 L. ed. 287); Ex parte Guerra (Vt.) 110 Atl. 224, 10 A. L. R. 1560; U. S. v. Casey, 247 Fed. 362; U. S. v. Holt, 270 Fed. 639; Martin v. U. S., 271 Fed. 685; U. S. v. Bostow, 273 Fed. 535; U. S. v. Regan, 273 Fed. 727; U. S. v. Cruikshank, 92 U. S. 542 (23 L. ed. 588); Grafton v. U. S., 206 U. S. 333, 353 (27 Sup. Ct. 749, 51 L. ed. 1084, 11 Ann. Cas. 640); Gilbert v. Minnesota, 254 U. S. 325, 330 (41 Sup. Ct. 125, 66 L. ed. —); State v. Moore, 143 Iowa, 240 (121 N. W. 1052, 21 Ann. Cas. 63); Bryson v. State, 27 Ga. App. 230 (108 S. E. 63); 16 C. J. 282.

In Moore v. Illinois, supra, the Supreme Court of the United States said: “ Every citizen of the United States is also a citizen of a State or territory. He may be said to owe allegiance to two sovereigns, and may be liable to punishment for an infraction of the laws of either. The same act may be an offence or transgression of the laws of both. Thus, an assault upon the marshal of the United States, and hindering him in the execution of legal process, is a high offence against the United States, for which the perpetrator is liable to punishment; and the same act may be also a gross breach of the peace of the State, a riot, assault, or a murder, and subject the same person to a punishment, under the State laws, for a misdemeanor or felony. That either or both may (if they see fit) punish such an offender, cannot be doubted. Yet it cannot be truly averred that the offender has been twice punished for the same offence; but only that by one act he has committed two offences, for each of which he is justly punishable.”

The same transaction may constitute a crime under the laws of the United States and also under the laws of the State; and a person violating both laws may be punished for both crimes; and an acquittal or a conviction in one jurisdiction is no bar to an indictment in the other. Is this principle altered by the adoption of the eighteenth amendment to the constitution of the United States? The first section of this amendment prohibits “the manufacture, sale, or transportation of intoxicating liquors within, the importation thereof into, or the exportation thereof from the United States and all territories subject to the jurisdiction thereof, for beverage purposes.”

The second section of this amendment is as follows: “ Congress and the several States shall have concurrent power to enforce this article by appropriate legislation.” , What does the second section of this amendment mean ? What do the words “ concurrent power” in this section imply? They do not mean that the power is a joint one to be executed both by Congress and the several States. The power thus conferred upon Congress by the States is not exclusively in the latter, although territorially coextensive with the prohibition of the first section. National Prohibition Cases, 253 U. S. 350 (40 Sup. Ct. 486, 588, 64 L. ed. 946).

Before the adoption of this amendment the several States alone had power to enforce prohibition within their limits, except in cases of liquor moving in interstate or foreign commerce. When the States adopted this amendment they did not confer upon Congress the exclusive power to enforce the same. They granted power to Congress to pass necessary or proper legislation for its enforcement; but at the same time the several States reserved to themselves the power to do the same thing. Concurrent power, not being joint power, necessarily means separate power. Neither Congress nor the several States can make this power exclusive by first legislating to enforce this amendment or by first prosecuting one under their respective enforcement laws. Congress can pass just such laws as it may see fit to enforce this amendment. The States can pass just such laws as they may see fit to enforce this statute. Congress can impose just such penalties as it may see fit for violations of its laws to enforce this amendment. The several States can inflict just such penalties as they may see fit for violations of their statutes to enforce this amendment. The citizens of the United States must obey the laws passed by Congress to enforce this amendment. If they violate the acts of Congress, they must suffer the penalties imposed thereby. The citizens of the several States must obey the laws of their States passed to enforce this amendment. If they violate these laws, they must suffer the penalties thereby imposed.

The difficulty of properly interpreting the second section of thb eighteenth, amendment to the constitution of the United States is fully appreciated. These difficulties will fully appear from a reading of the National Prohibition Cases, supra. The majority and weight of the decisions which have dealt with this subject since the adoption of the eighteenth amendment sustain the view above reached by us. We believe that these decisions are correct in principle and reasoning. Some of these decisions declare that a previous conviction, under these circumstances, may be considered by the courts in passing sentences or by executives who are clothed with power to extend clemency. U. S. v. Amy, 24 Fed. Cas. 792, 810; U. S. v. Palan, 167 Fed. 991; U. S. v. Holt, 270 Fed. 639; U. S. v. Bostow, 273 Fed. 535. There are cases which hold the opposite doctrine, and which would sustain the plea filed by the defendant in this case. U. S. v. Porria (D. C.), 255 Fed. 172; State v. Randall, 2 Aikens (Vt.), 89, 100; Commonwealth v. Overby, 80 Ky. 208 (3 Ky. Law R. 704, 44 Am. R. 471); Commonwealth v. Fuller, 49 Mass. 313 (41 Am. D. 509); U. S. v. Peterson, 268 Fed. 864. But on principle and authority we believe that the view herein expressed is the true view of the law upon this subject.

But this plea was not good for another reason. The defendant was charged in the United States district court with three offenses. In the first count he was charged with having and keeping intoxicating liquor for sale. In the second count he was charged -with selling intoxicating liquor. In the third count he was charged with concealing one quart of intoxicating liquor with the intent to evade the payment of the internal revenue tax due thereon. He pleaded guilty in the United States district court to the charges embraced in the first and second counts of the bill of information. He was tried in the city court of Savannah on an accusation with two counts. In the first count he was charged with having the possession of spirituous liquors. In the second count he was charged with the sale of spirituous liquors. He was acquitted on the second count of this accusation, and convicted on the first. The charges embraced in the two accusations are entirely different and distinct offenses, except the charge of selling intoxicating liquor, which latter charge is embraced in both accusations. Of the latter charge he was acquitted in the city court of Savannah; and for this reason, if his plea of former jeopardy were otherwise valid, a reversal of the judgment of the court below for the purpose of permitting the defendant to avail himself of this defense would be useless.

The eighteenth amendment prohibits only “the manufacture, sale, or transportation of intoxicating liquors within, the importation thereof into, or the exporation thereof from the United States and all territories subject to the jurisdiction thereof, for beverage purposes.” Standing by itself this amendment does not prohibit the mere possession of liquor. The national prohibition act does not prohibit the possession of liquor for all purposes. Fed. Stat. Ann. 1919 Supp. 206 et seq.; Street v. Lincoln Safe Deposit Co., 254 U. S. 88 (41 Sup. Ct. 31, 66 L. ed., —, 10 A. L. R. 1548). Under this law the mere possession of liquor does not constitute a crime. The Georgia statute makes it unlawful “ to have, control, or possess, in this State,” any intoxicating liquors. Acts Ex. Sess. 1917, p. 8. Under this law the possession of intoxicating liquors is made a crime.

The charge of which the defendant was convicted in the city court of Savannah being entirely distinct and separate from the charges to which he pleaded guilty in the United States district court, his plea of former jeopardy would not lie. We are therefore of the opinion that the court did not err in striking this plea.

■Judgment affirmed.

All the Justices concur, except Atlcinson, J., disqualified, and Beck, P. J., who dissents from the ruling in the third headnote.