Day v. State

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

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.