Sowell v. State

Lumpkin, J.

1. Under the decision in Wells v. State, 118 Ga. 556, the first ground of the demurrer was fatally defective. In that decision it was said (page 558) : “One of the grounds of the demurrer was that ‘separate and distinct’ offenses, for which ‘separate and distinct penalties are provided,’ are improperly joined in the indictment; but the demurrer fails to even indicate what these ‘separate and distinct’ offenses are; and for this reason, if for no other, the ground was fatally defective.” The first ground of the demurrer was therefore properly overruled.

2. It is not quite easy to understand clearly the point which is intended to be made by the second ground of the demurrer. If it were intended to make the point merely that the joinder of a charge of an unlawful sale of spirituous liquors, and mixtures of spirituous liquors, together with a charge of an unlawful sale of intoxicating liquors, was improper generally, the larger' part of the ground would be meaningless. Construing it altogether, we think it fairly intends to raise the point that since the passage of the act of 1904 (Acts 1904, p. 98), regulating the sale of domestic wines, a violation thereof might be shown under a charge of selling intoxicating liquors without a license, and that for that reason this presentment coupled a charge under which the sale of domestic wine might be unlawful along with a charge of selling spirituous liquors. No question was raised as to the inclusion of malt liquors with others in the presentment. A part of the demurrer is plainly bad as being a “speaking” demurrer, in alleging that the commissioners of roads and revenues of Screven county had provided a license of twenty-five dollars for selling domestic wines. Construing this ground as above indicated, it was properly overruled. Formerly the law did not require a license for the sale of domestic wine. See, on the subject, Acts 1877, p. 33; Acts 1887, p. 21; Acts 1890-91, p. 130; Penal Code, §§449, 450. It was held, that under a charge of the sale of wine and spirituous liquors it was not necessary to negative the fact that the wine was domestic, but it was matter of dejfense to show that the wine was of a character which required no license. Kemp v. State, 120 Ga. 157 (4), and cases cited on page *108 159. Since the passage of the act of 1904, the State might base an indictment upon such special act, alleging that the wine sold was domestic wine, that the local authorities had made provision for the .granting of a license, and that the defendant had failed to obtain ■one. But the State was not compelled to do this. Under the general law (where selling wine without a license was prohibited) it might still accuse the defendant of selling wine without a license, leaving him, if he so desired, by way of defense to show that the wine was domestic wine and was sold where no license was required, ■or, if one was required, after obtaining it. Compare Penal Code, ■§450. Thus the point made, that under the presentment it was ■possible to prove a sale of domestic wine, was without merit, and was properly overruled. We do not mean to say that this indictment was not subject to a proper demurrer on the ground of the misjoinder of different offenses in one count, but the presiding judge ■did not err in overruling the demurrer which was actually made.

3. The demurrer having been correctly overruled, the case stands ■as if there had never been any demurrer. In this light it is immaterial whether the presentment contained in one count distinct .and different offenses or not. If it did so, and charged each of them sufficiently, upon proper proof the accused might be convicted of ■either. There was no application to require an election, even if there would have been any merit in such motion; nor was there any ■objection to evidence. The accused thus went to trial subject to the chance of being shown guilty of any one of the offenses sufficiently charged in the presentment. Under the Penal Code, §431, with proper evidence he might have been convicted of the offense therein described. Under the local law touching Screven county (Acts 1874, p. 403; Acts 1880-1, p. 593) the method of granting a license to sell spirituous or intoxicating liquors in Screven county was regulated, and in the latter act it was declared to be a misde■meanor to sell without such a license. It is suggested or intimated in the briefs that perhaps this act was unconstitutional; but no ■such point appears to have been made in the trial court, nor is it 'distinctly shown here why it is unconstitutional. There was sufficient evidence to show the sale of intoxicating liquors without a license, and the verdict was therefore supported by the evidence.

Judgment affirmed.

All the Justices concur, except Fish, G. J., <iabsent.