Opinion
33101.
DECIDED JULY 14, 1950. REHEARING DENIED JULY 28, 1950.
Violating. liquor law; from Bulloch Superior Court — Judge Renfroe. March 17, 1950. (Application to Supreme Court for certiorari.)
William J. Neville, W. G. Neville, for plaintiff in error.
Walton Usher, Solicitor-General, contra.
1. An indictment, charging in three counts that the defendant violated the State liquor law, the first two counts not having immediately thereafter the phrase "contrary to the laws of said State, the good order, peace and dignity thereof," such contra pacem clause only appearing at the end of the indictment and immediately following the third count, is in substantial compliance with the rule of law that each count of an indictment must be complete.
2. Where it appeared from the evidence that the defendant was apprehended in possession of more than one quart of intoxicating liquor in a dry county, and that such liquor was unstamped, the jury were authorized to find that the defendant was guilty of unlawful possession of whisky in a dry county and also in possession of non-tax-paid and unstamped illicit liquor.
DECIDED JULY 14, 1950. REHEARING DENIED JULY 28, 1950.
The grand jury of Bulloch County indicted Albert Shuman in three counts, the first charging that on October 13, 1949, the defendant did possess intoxicating liquors, the second count charging that on said date the defendant did unlawfully possess distilled spirits and alcohol, which did not bear the tax stamps required under Code, Ann. Supp., § 58-1056 (Ga. L. Ex. Sess. 1937-38, pp. 103, 117), and the third charging that the defendant did on said date unlawfully transport in said county intoxicating liquors, which county was not one of the counties in the State within which intoxicating liquors might be legally transported. The defendant demurred to said indictment because count one failed to allege that the offense therein stated was committed "contrary to the laws of said State, the good order, peace and dignity thereof," because no offense was charges in count two for the reason that the offense was not alleged as having been "contrary to the laws of said State, the good order, peace and dignity thereof," and because the indictment fails to charge a violation of law in each of said first two counts in that they are not complete allegations of the offenses charged therein for the reason that it was not alleged that the acts alleged to have been committed were done "contrary to the laws of said State, the good order, peace and dignity thereof." The court overruled these demurrers and the defendant excepted pendente lite, assigning error thereon in the present bill of exceptions to this court.
The case came on for trial and there was evidence to the effect that the officers caught the defendant with 57 gallons of "moonshine" whisky on said October 13, 1949, on which liquor there were no State tax stamps, and that the officers chased him some little way before he turned off the highway, and they found him on a side road with this whisky. The evidence showed that this took place in Bulloch County. The jury returned a verdict finding the defendant guilty on counts one and two.
1. The defendant was indicted in three counts, one charging possession of intoxicating liquor in a dry county; the second charging possession of such liquor, unstamped; and the third charging him with transporting such liquor. It appears from the indictment that after count one and after count two, it is not specifically alleged that the offense was "contrary to the laws of said State, the good order, peace and dignity thereof," although at the conclusion of count three said words do appear. It is insisted that each count of the indictment must be complete within itself, and that where the first two counts do not contain the above phrase, the indictment is not sufficient and should be stricken. Code § 27-701 provides the form in which indictments shall be drawn and provides that the same shall be deemed sufficiently technical and correct where they state the offense in the terms and language of the Code or so plainly that the nature of the offense charged may easily be understood by the jury. This section then sets out the form of every indictment, same ending with the contra pacem clause, which the defendant complains is left out of this indictment as to the first and second counts. While it is true that every count of an indictment must be complete within itself and plainly, fully and distinctly set out the offense charged, the offense is fully stated herein. The defect complained of is one of technical formality only, and, in our opinion, it is not such as to vitiate the proceedings, and the court properly overruled the special demurrers directed thereto. Such indictment was not, for the reason that the contra pacem clause only appeared at the end thereof after count three, fatally defective. The rule of law that each count must be "complete within itself and must contain every essential allegation to constitute a crime" ( Perry v. State, 62 Ga. App. 115, 8 S.E.2d 425), applies to the offense rather than to the form. We think that the indictment was in substantial compliance with the statute. The trial judge did not err in overruling the demurrers thereto. See Lee v. State, 81 Ga. App. 829 ( 8 S.E.2d 425).
2. The evidence authorized the jury to find that the defendant was guilty of possessing more than one quart of intoxicating liquor in a dry county and of possessing unstamped alcoholic liquor therein. The jury did not find the defendant guilty of transporting such liquor. There is no merit in the general grounds of the motion for new trial, and the trial judge properly overruled the same.
Judgment affirmed. MacIntyre, P.J., and Townsend, J., concur.