Day v. State

Court of Appeals of Georgia

Day v. State

54 S.E.2d 668, 79 Ga. App. 662, 1949 Ga. App. LEXIS 717

CourtCourt of Appeals of Georgia

DecidedJuly 15, 1949

Docket32612.

StatusPublished

Cited by2 cases

This text of 54 S.E.2d 668 (Day v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Day v. State, 54 S.E.2d 668, 79 Ga. App. 662, 1949 Ga. App. LEXIS 717 (Ga. Ct. App. 1949).

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Opinion

Townsend, J.

(After stating the foregoing facts.) The accusation here makes no reference to the premises of the defendant. As was held in Johnson v. State, 79 Ga. App. 210 (53 S. E. 2d, 498), “The gravamen of the offense making penal the possession of an apparatus for illegally distilling alcoholic liquors, as provided in Code § 58-209, is knowingly having upon- one’s premises such an apparatus or knowingly permitting or allowing another to do so.” Accordingly, an accusation which fails to charge that the defendant had such an apparatus on his premises, or that he knowingly permitted or allowed another to do so, is subject to general demurrer. See Johnson v. State, supra, and cases there cited.

Since the trial court erred in overruling the demurrer and not dismissing the accusation, all subsequent proceedings were nugatory.

Judgment reversed.

MacIntyre, P. J., and Gardner, J., concur.

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Townsend, J.

(After stating the foregoing facts.) The accusation here makes no reference to the premises of the defendant. As was held in Johnson v. State, 79 Ga. App. 210 (53 S. E. 2d, 498), “The gravamen of the offense making penal the possession of an apparatus for illegally distilling alcoholic liquors, as provided in Code § 58-209, is knowingly having upon- one’s premises such an apparatus or knowingly permitting or allowing another to do so.” Accordingly, an accusation which fails to charge that the defendant had such an apparatus on his premises, or that he knowingly permitted or allowed another to do so, is subject to general demurrer. See Johnson v. State, supra, and cases there cited.

Since the trial court erred in overruling the demurrer and not dismissing the accusation, all subsequent proceedings were nugatory.

Judgment reversed.

MacIntyre, P. J., and Gardner, J., concur.

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Bluebook (online)

54 S.E.2d 668, 79 Ga. App. 662, 1949 Ga. App. LEXIS 717, Counsel Stack Legal Research, https://law.counselstack.com/opinion/day-v-state-gactapp-1949.

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