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Lawskills.com Georgia Caselaw
SHUMAN v. THE STATE.
33103.
Violating liquor law; from Bulloch Superior Court-- Judge Renfroe. March 17, 1950. (Application to Supreme Court for certiorari.)
GARDNER, J.
1. An indictment is not fatally defective but is in substantial compliance with the provisions of Code 27-701, where the contra pacem clause "contrary to the laws of said State, the good order, peace and dignity thereof" follows the last and second count thereof, although immediately following the first count there is no such clause.
2. Count one of the indictment substantially charged the offense of unlawfully possessing intoxicating liquors in Bulloch County, a dry county, of this State. It was not error for the trial court to admit evidence, over the defendant's objection, in support of and under this count.
3. Where it appeared that the defendant was apprehended at a whisky still in Bulloch County, which was in operation, and there were at this place 20 gallons of non-tax-paid and unstamped whisky, commonly known as "moonshine" and a quantity of mash for making intoxicating liquor, and where the defendant admitted that the still belonged to and was being operated by him, a verdict convicting such defendant of the unlawful possession of intoxicating liquor in a dry county and of possessing a quantity of unstamped and illicit whisky was authorized.
Albert Shuman and others were indicted by the grand jury of Bulloch County, which indictment charged that on November 25, 1949, the defendant possessed contraband whisky, commonly called "moonshine" in said county, and in count two charged that the defendant on said date possessed spirituous, alcoholic and intoxicating liquors, which did not bear the tax stamps required by Code (Ann. Supp.) 58-1056. At the end of this count appears the contra pacem clause "contrary to the laws of said State, the good order, peace and dignity thereof." Such clause does not appear at the end of count one of the indictment. The defendant demurred to this indictment because the same fails to set out a violation of the laws of this State in count one for the reason that such count fails to set out that the alleged offense of possessing contraband whisky, to wit "moonshine" was committed "contrary to the laws of said State, the good order, peace and dignity thereof," and because count one of the indictment is not complete and lacks any allegation that the alleged act of the defendant is a violation of the law and fails to allege that the same was "contrary to the laws of said State, the good order, peace and dignity thereof." The trial judge overruled said demurrer, and the defendant excepted pendente lite, assigning error on such pendente lite exceptions in the bill of exceptions to this court.
The case proceeded to trial, and the jury returned a verdict finding the defendant guilty as charged. It appeared from the evidence that on November 25, 1949, the defendant was arrested in Bulloch County and had 20 gallons of what is commonly known as "moonshine" whisky in his possession, that this whisky was found at a whisky still, where there were some 18 barrels of mash, that the defendant stated that he owned the still and was operating it, that the whisky was "unstamped whisky," "moonshine" whisky, and was found in the possession of the defendant, and that the defendant, in reply to a question as to how long the still had been set up, stated that he had just set it there, and none of the whisky bore tax stamps as required by Code (Ann. Supp.) 58-1056. The defendant moved for a new trial on the general grounds, and by amendment added six special grounds, in which he assigned error on the introduction of evidence relating to and in support of count one of the indictment. The trial judge overruled the motion for a new trial, and the defendant excepted.
1. Under the rulings made by this court in the case of Shuman v. State, ante, p. 294, the court did not err in overruling the defendant's demurrer to the indictment and particularly to count one thereof in that the same did not have at the end of count one the contra pacem clause, "contrary to the laws of said State, and to the good order, peace and dignity thereof." See Lee v. State, 81 Ga. App. 829 (60 S. E. 2d, 194).
2. It follows from the ruling made in the first division of this opinion on the defendant's demurrer to the indictment, and particularly to count one thereof, that there is no merit in any of the special grounds of the motion for new trial, in which the defendant assigned error on the introduction of evidence in support of and relating to the offense charged in count one of the indictment. None of the evidence set forth in these grounds was irrelevant and immaterial on the ground and for the reason alleged.
3. The evidence authorized the verdict finding the defendant guilty. The jury were authorized to find that the defendant was arrested in Bulloch County, a "dry" county, on said date, with 20 gallons of alcoholic liquor in his possession, and that this liquor was unstamped whisky and was what is commonly called "moonshine" whisky, that is, whisky clandestinely distilled at an illicit whisky still, deriving' the name "moonshine" from the fact that many illicit distilleries in this State are operated during the nighttime by the light of the moon, and the operators are designated as "moonshiners" and the liquor thus stilled called "moonshine" whisky.
4. The trial judge did not err in overruling the defendant's motion for new trial, as amended.
Judgment affirmed. MacIntyre, P. J., and Townsend, J., concur.
Walton Usher, Solicitor-General, contra.
William J. Neville, W. G. Neville, for plaintiff in error.
DECIDED JULY 14, 1950. REHEARING DENIED JULY 28, 1950.
Saturday May 23 06:16 EDT


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