Garrett v. State

Court of Appeals of Georgia

Garrett v. State

31 S.E.2d 244, 71 Ga. App. 449, 1944 Ga. App. LEXIS 130

CourtCourt of Appeals of Georgia

DecidedApril 8, 1944

Docket30400.

StatusPublished

Cited by4 cases

This text of 31 S.E.2d 244 (Garrett 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.

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Garrett v. State, 31 S.E.2d 244, 71 Ga. App. 449, 1944 Ga. App. LEXIS 130 (Ga. Ct. App. 1944).

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MacIntyre, J.

1. It is provided in the act approved February 3, 1938 (Ga. L. Ex. Sess., 1937-1938, p. 103, sec. 27, Ga. Code Ann., § 58-1077), that: “Any person found in possession or control of more than one quart of spirituous, vinous, or alcoholic liquor, in any county of this State (except such counties in which liquor may be legally sold or transported under the terms of this chapter) shall be guilty of a misdemeanor and, upon conviction, punishable as in cases of misdemeanors.” Sections 4 and 27 of the act (Ga. Code Ann., §§ 58-1008, 58-1078), make an exception in which it would be lawful for a person to possess more than one quart of intoxicating liquor when the possession is in a county which has voted “wet,” as provided by law, and becomes what is known in common parlance as a “wet county.” The accusation charged a crime in violation of a general law created by the prohibition statute of this State, and conforms substantially to the statute, for it is not necessary that an accusation, based on a violation of this general law, should aver that the accused does not belong to the class of persons who may lawfully possess intoxicating liquor in a “wet county.” and thus are excepted from the operation of the general law.

If the possession of more than one quart of such prohibited liquors be in a “wet county,” the burden is on the defendant to show that fact, and thus show that he comes within one of the exceptions to the general law. The accusation charged that the defendant “did then and there, unlawfully and with force and arms, have and control and possess more than one quart of spirituous alcoholic liquors, distilled alcoholic liquors, whisky, rum, brandy, and gin, the container of which did bear the revenue stamps required by the State of Georgia.” Thus the accusation was not subject to general or special-demurrer. Kitchens v. State, supra; Carter v. State, supra; Hennon v. State, 62 Ga. App. 485 (7 S. E. 2d, 921); Smith v. State, 62 Ga. App. 484 (8 S. E. 2d, 94); Frierson v. State, 67 Ga. App. 829 (4) (21 S. E. 2d, 438).

All the essential elements of the crime charged were proved, and there was no sufficient proof that the defendant belonged to *451 any class of persons excepted from the general provisions of the act. Frierson v. State, supra.

Judgment affirmed.

Broyles, G. J., and Gardner, J., concur.

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MacIntyre, J.

1. It is provided in the act approved February 3, 1938 (Ga. L. Ex. Sess., 1937-1938, p. 103, sec. 27, Ga. Code Ann., § 58-1077), that: “Any person found in possession or control of more than one quart of spirituous, vinous, or alcoholic liquor, in any county of this State (except such counties in which liquor may be legally sold or transported under the terms of this chapter) shall be guilty of a misdemeanor and, upon conviction, punishable as in cases of misdemeanors.” Sections 4 and 27 of the act (Ga. Code Ann., §§ 58-1008, 58-1078), make an exception in which it would be lawful for a person to possess more than one quart of intoxicating liquor when the possession is in a county which has voted “wet,” as provided by law, and becomes what is known in common parlance as a “wet county.” The accusation charged a crime in violation of a general law created by the prohibition statute of this State, and conforms substantially to the statute, for it is not necessary that an accusation, based on a violation of this general law, should aver that the accused does not belong to the class of persons who may lawfully possess intoxicating liquor in a “wet county.” and thus are excepted from the operation of the general law.

If the possession of more than one quart of such prohibited liquors be in a “wet county,” the burden is on the defendant to show that fact, and thus show that he comes within one of the exceptions to the general law. The accusation charged that the defendant “did then and there, unlawfully and with force and arms, have and control and possess more than one quart of spirituous alcoholic liquors, distilled alcoholic liquors, whisky, rum, brandy, and gin, the container of which did bear the revenue stamps required by the State of Georgia.” Thus the accusation was not subject to general or special-demurrer. Kitchens v. State, supra; Carter v. State, supra; Hennon v. State, 62 Ga. App. 485 (7 S. E. 2d, 921); Smith v. State, 62 Ga. App. 484 (8 S. E. 2d, 94); Frierson v. State, 67 Ga. App. 829 (4) (21 S. E. 2d, 438).

All the essential elements of the crime charged were proved, and there was no sufficient proof that the defendant belonged to *451 any class of persons excepted from the general provisions of the act. Frierson v. State, supra.

Judgment affirmed.

Broyles, G. J., and Gardner, J., concur.

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31 S.E.2d 244, 71 Ga. App. 449, 1944 Ga. App. LEXIS 130, Counsel Stack Legal Research, https://law.counselstack.com/opinion/garrett-v-state-gactapp-1944.

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