Simmons v. State

Court of Appeals of Georgia

Simmons v. State

134 S.E. 202, 35 Ga. App. 652, 1926 Ga. App. LEXIS 1051

CourtCourt of Appeals of Georgia

DecidedAugust 4, 1926

Docket16487; 16449

StatusPublished

Cited by1 cases

This text of 134 S.E. 202 (Simmons 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

Simmons v. State, 134 S.E. 202, 35 Ga. App. 652, 1926 Ga. App. LEXIS 1051 (Ga. Ct. App. 1926).

Pincite

Opinion

Luke, J.

In each of these eases the accusation contained two counts; the first charging a sale and the second charging possession of intoxicating liquors. In each case a general verdict of guilty was rendered; and in neither case did the evidence authorize a conviction of selling intoxicating liquors. However, the sentence imposed in each case did not exceed that which could have legally been imposed if the accused had been convicted under the second count only. In answer to a question certified by this court to the Supreme Court, that court held as follows: “It is error to refuse a new trial where an accusation contains two counts, the first charging a sale of whisky, and the second charging possession of whisky, both charges growing out of the same transaction, where upon the trial the evidence authorizes a conviction upon the second count only and the verdict is a general verdict of guilty.” The court further ruled that this was true although the sentence imposed in each case did not exceed that which could have legally been given if the accused had been convicted under the second count only. Eor full opinion of Supreme Court see Simmons v. State, 162 Ga. 316 (134 S. E. 54). Under this ruling the judge of the trial court in each case erred in overruling the motion for a new trial.

Judgments reversed.

Broyles, O. J., and Bloodworth, J., concur.

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Luke, J.

In each of these eases the accusation contained two counts; the first charging a sale and the second charging possession of intoxicating liquors. In each case a general verdict of guilty was rendered; and in neither case did the evidence authorize a conviction of selling intoxicating liquors. However, the sentence imposed in each case did not exceed that which could have legally been imposed if the accused had been convicted under the second count only. In answer to a question certified by this court to the Supreme Court, that court held as follows: “It is error to refuse a new trial where an accusation contains two counts, the first charging a sale of whisky, and the second charging possession of whisky, both charges growing out of the same transaction, where upon the trial the evidence authorizes a conviction upon the second count only and the verdict is a general verdict of guilty.” The court further ruled that this was true although the sentence imposed in each case did not exceed that which could have legally been given if the accused had been convicted under the second count only. Eor full opinion of Supreme Court see Simmons v. State, 162 Ga. 316 (134 S. E. 54). Under this ruling the judge of the trial court in each case erred in overruling the motion for a new trial.

Judgments reversed.

Broyles, O. J., and Bloodworth, J., concur.

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Bluebook (online)

134 S.E. 202, 35 Ga. App. 652, 1926 Ga. App. LEXIS 1051, Counsel Stack Legal Research, https://law.counselstack.com/opinion/simmons-v-state-gactapp-1926.

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