Cohen v. State

65 S.E. 1096, 7 Ga. App. 5, 1909 Ga. App. LEXIS 509

• Court: Court of Appeals of Georgia
• Decided: November 9, 1909
• Docket: 2039; 2040
• Status: Published

Opinions

Hill, C. J.

1. The prohibition statute (Acts 1907, p. 81) declares that it shall not be lawful for any person to keep on hand at his place of business any intoxicating liquor. The criminal act is the keeping on hand, and it is wholly immaterial for what purpose the intoxicating liquor is there kept on hand. Consequently, an accusation which charged that the defendant, on a day named, “did keep on hand at his place of business intoxicating liquor” was good in form and in substance; and on the trial any evidence as to the defendant’s purpose in keeping the intoxicating liquor on hand at his place of business was properly excluded as irrelevant and immaterial.

2. Evidence obtained by search of the defendant’s premises is admissible against him, although the search is made and the evidence is procured under a search warrant illegally issued, or even without color of legal authority. Hammock v. State, 1 Ga. App. 126 (58 S. E. 66) ; Williams v. State, 100 Ga. 511 (28 S. E. 624, 39 L. R. A. 269) ; Duren v. Thomasville, 125 Ga. 1 (53 S. E. 814).

3. A motion made by the defendant, at the conclusion of the evidence, to direct a verdict in his favor, because the statute on which the accusation was based was, for reasons stated, violative of the constitution, was properly overruled; and exceptions to the judgment overruling the motion present to 'this court no constitutional question in proper form for certification to the Supreme Court. Demurrer, or motion to quash the accusation, was the proper procedure; not motion to direct a verdict.

4. The evidence demanded the verdict, and any error of law was immaterial.

Judgment affirmed,

Russell, J., dissenting.

Certiorari; from Fulton superior court — Judge Pendleton. July 7, 1909.

Argued October 4, Decided November 9, 1909. F. M. Hughes, Morris Macks, for plaintiffs in error. C. D. Hill, solicitor-general, Lowry Arnold, solicitor, D. E. Johnston, contra.