Sapp v. The State., 99 Ga. App. 657, 109 S.E.2d 841 (1959)

Status: DECIDED

Docket Number: 37677

Parts: Liquor violation. Macon City Court. Before Judg...

Linked as:

Text

Clarence H. Clay, Jr., Solicitor, Harry F. Thompson, Assistant Solicitor, contra.Bloch, Hall, Groover & Hawkins, for plaintiff in error.

An employee of the holder of a retail liquor license and who as such is engaged in the business and occupation of selling liquor at retail is a licensee within the meaning and intent of Section 29 of the Revenue Tax Act to Legalize and Control Alcoholic Beverages and Liquors (Ga. L. 1937-38, Ex. Sess., pp. 103, 124; Code, Ann., 58-1080) and is prohibited thereby from wilfully and knowingly selling more than two quarts of whisky per day to one person, and when he violates his restriction he may be prosecuted therefor under the provisions of that law. The defendant in the instant case was shown by the allegations of the accusation and by the facts stipulated to be within the scope of the above stated principle and his conviction was authorized.

The defendant in this case was tried and convicted in the City Court of Macon under an accusation charging him with the offense of unlawfully and knowingly selling to a named purchaser more than two quarts of whisky on one day in violation of the provisions of Section 29 of the Act approved February 3, 1958, commonly called the "Revenue Tax Act to Legalize and Control Alcoholic Beverages and Liquors" (Ga. L. 1937-38, Ex. Sess., pp. 103, 124; Code, Ann., 58-1080). Said accusation charged that the defendant "being an employee of Paul Fowler, trading as Riverside Liquor Store, a retail licensee, authorized to sell distilled spirits and alcoholic beverages at retail at 59 Fifth Street, in Macon, Bibb County, Georgia, did, while acting at said time and place for said retail licensee and in the scope of his employment as an employee as aforesaid, unlawfully and knowingly sell to a purchaser, . . . more than two quarts in one day . . . the said purchaser not being the holder of a manufacturer's distiller's license, nor a wholesale licensee, nor a retail licensee." The defendant filed general and special demurrers to the accusation which were overruled and the case was tried by the Judge of the City Court of Macon upon stipulated facts that the defendant sold the liquor described in the accusation at the place alleged; that the defendant was an employee of Paul Fowler, trading as Riverside Liquor Store; that Paul Fowler was a retail liquor licensee authorized to sell distilled spirits and alcoholic beverages; that at the time of the sale the defendant was the sole employee in, the place of business and was in charge of the place of business; that there was no evidence that Paul Fowler, the retail liquor licensee, authorized the sale or knew of it or subsequently ratified it; and, that the defendant Oscar Sapp is not a retail liquor licensee.

The sole contention of the plaintiff in error is that the wording of Section 29 of the Act is such that only the actual holder of a retail license, that is, a "retail licensee," may be guilty of the offense of willfully and knowingly selling more than two quarts per day to any one person, and that since the defendant was alleged by the accusation and shown by the stipulation of facts not to be the holder of a license that he is not made liable to punishment on account of his willfully and knowingly selling more than two quarts per day to any purchaser. This contention is not meritorious. As was said by Judge MacIntyre in Bienert v. State, 82 Ga. App. 179, 180 (60 S. E. 2d 575), speaking for the Court of Appeals, "Georgia as a whole is a dry State and the general prohibition law as contained in Code 58-101, 58-102, et seq., generally known as the 'bone dry' law, is in force add effect in every county of the State unless the prohibited liquors have been legalized by statute or statute and election held in conformity with the statute in the individual counties. Prior to the effective date of the Act of 1937-38 (Ga. Laws, 1937-38, Ex. Sess., p. 103) the sale of distilled spirits and whisky was a violation of the prohibition law. Bibb County, the county in which the crime was alleged to have been committed had held, under the provisions of the Act of 1937-38 (Ga. Laws, 1937-38, Ex. Sess., p. 103), an election and the county had voted 'wet'; that is it had voted to legalize and control in such wet county the liquors described in the act; and, distilled spirits and whisky, being described in the act, are some of the liquors which are legalized and controlled by the provisions of the act." But, after such an election sales of the described liquors may be made only in strict accordance with the provisions of the act.

The act authorizes the sale of alcoholic beverages and liquors but authorizes such sale only by one licensed in accordance with the law in a county which has approved by referendum the sale of such beverages. Code (Ann.) 58-1002. It declares that the sale of liquor is a privilege and not a right (Code, Ann., 58-1068), and it makes a wilful and knowing sale of more than two quarts a day to any one purchaser by a retail licensee a misdemeanor. Code (Ann.) 58-1080.

In reaching the foregoing conclusions, we, of course, are not unmindful of the rule of strict construction of criminal statutes. "We agree to all the generalities about not supplying criminal laws with what they omit, but there is no canon against using common sense in construing laws as saying what they obviously mean." Roschen v. Ward, 279 U. S. 337, 339 (49 S. Ct. 336, 73 L. Ed. 722). While criminal laws are to be construed strictly, they are not to be construed so strictly as to defeat the obvious intention of the legislature. United States v. Wiltberger, 18 U. S. (5 Wheaton) 76, 95.

It follows that the trial court did not err in overruling the general demurrer to the accusation and in thereafter entering a verdict and judgment finding the defendant guilty under the stipulations of fact.

Judgment affirmed. Gardner P. J., and Townsend, J., concur.

1959