Patton v. State

6 S.E. 273, 80 Ga. 714

• Court: Supreme Court of Georgia
• Decided: May 7, 1888
• Status: Published

Opinion

Bleckley, Chief Justice.

1. By the code, §4664, it is declared that offences shall be prosecuted and punished under the laws in force at the time of the commission of the same, notwithstanding the repeal of such laws before the trial takes place. The time within which indictments are to be found and filed, in cases of misdemeanor, is two years after the commission of the offence. Code, §4665. It follows that if the special local option law of December 24th, 1884, (acts T884-5, p. 523,) for Habersham county, went into effect on the 5 th of August, 1885, it was not too late to prosecute at March term, 1887, for a misdemeanor committed whilst the general law of the State touching, the sale of spirituous liquors was in force in that county. The indictment in the present case was found and filed at March term, 1887, and although it alleged the commission of the various offences on the first of February, 1S87, yet it was allowable for the State to prove their commission at any time within two years preceding the finding of the indictment.

2. It follows again that the indictment was good if it was adapted to the general law, but that the State would have to prove that the alleged acts, or some of them alleged in the various counts, were done whilst the general law was of force in Habersham county, and within two years preceding the finding of the indictment.

That the indictment was adapted to the general law, and not to the special local option act for Habersham county, is obvious. The first and fourth counts were framed under section 4565 of the code, as altered and amended by the act of September 27th, 1883, (acts of 1882-3, p. 62,) and the second and third counts under sections 809b to 809g of the code. It is perfectly plain that the grand jury who found the bill, the whole bill, to be true, and that the acts done were “ contrary to the laws of said State,” must have meant that the general law had been violated, and not the special local option act for Habersham county. The latter declares that, after certain preliminaries, “ it then shall be unlawful to sell or cause to be sold, in any quantity whatever, any spirituous, malt or intoxicating liquor, or any mixture of such liquor, in the county of Habersham, and any person directly or indirectly violating the provisions of this act shall be deemed guilty of a misdemeanor, and upon conviction,” etc. Under this local act, an indict* ment for selling without license and taking the oath prescribed in the code, in quantities less than a gallon, or for selling without registering, or for failing and refusing to pay the tax after registering, or for selling at retail without taking the oath prescribed and paying the license fee, would bo simply nonsense. We cannot suppose that the grand jury, or the State’s skilled and trusted officer, the solicitor-general, meant to charge four misdemeanors against which the general law provides under a local act which provides* for the punishment of only one misdemeanor, to-wit, the offence of selling at all. It surely could not have been the purpose of these public functionaries to impute to the accused merely fanciful or imaginary crimes. The grand jury could not have intended upon their oaths to have charged that the accused violated the special local option law for Habersham county by failing to register as a liquor dealer, or after registering as such by failing or refusing to pay the tax as a dealer. The special local option law for Habersham county contains no provisions on these subjects. The grand jury, as they returned the whole bill true, must have found that, according to the evidence before them, the accused committed the offence of failing to register, and the further offence of failing or refusing to pay the tax after registering ; and as these acts were not offences under the local law, the grand jury must have found the indictment as a whole under the general law. And had the evidence shown that the imputed acts were done whilst the general law was in force, although the indictment was found and the trial had after its repeal, the accused might have been convicted.

3. But the evidence showed that the sale was made in the spring of 1887, which was after the general law ceased to be operative in Habersham county, and thus it did not support the indictment. Moreover, the evidence was insufficient in not showing that the sale took place before the indictment was found. The law fixes the spring term of Habersham superior court to commence on the first Monday in March, and allowing the court to hold two weeks (Rabun court is held on the third Monday in March), the indictment must have been found before half of the spring of 1887 was exhausted. It is thus entirely consistent with the evidence that the act of sale testified to might have occurred after the indictment was found.

Our conclusion is, that the court was right in overruling the demurrer and in not arresting the judgment, but erred in not granting a new trial, the evidence not showing that the sale was made whilst the general law was of force in Habersham county, or even before the finding of the bill of indictment, and the indictment being obviously framed under the general law, and not under the local option law for that county.

Judgment reversed.