Lewis v. City of Fitzgerald

Russell, C. J. The plaintiff in error presented a petition for certiorari, which was denied. The merit of the cause, in advance of the coming in of the answer, is of course to be determined by the allegations of the petition for certiorari. Linder v. Renfroe, 1 Ga. App. 58 (57 S. E. 975). The petitioner in this case was convicted in the mayor’s court of the City of Fitzgerald of a violation of a municipal ordinance which penalizes the keeping, for the purpose of illegal sale, of any malt, spirituous, fermented, or other intoxicating liquors. The petition for certiorari alleged that the judgment of conviction in the municipal court was contrary to evidence, without evidence to support it, and contrary to law. The testimony was very brief. S. C. Pryor testified, that he saw the defendant’s name on a barrel of whisky. He saw a team of one Cash Booker backed up against the platform at the depot. He kept his eye on the team until he “saw Mr. Heck come down in a 275 few minutes, and they all went in together.” He saw “Booker’s team drive off rapidly from the depot” and followed it. He further testified: “The next time I saw the negro he was in Mr. Johnson’s pool room. I arrested him because I saw his name on the barrel of whisky.” “As soon as I got up with Mr. Booker, I arrested him and brought him and the whisky to the police station. The barrel had -whisky in it.” McKay, the warehouseman at the depot, testified: “I saw this defendant yesterday. Saw him at the freight office. I delivered him a barrel. I delivered that barrel to J. Jennings. I delivered the barrel to the draymen at the direction of this defendant. I did not deliver it to this defendant personally. He simply signed for it, and I delivered it to the drayman at his direction. That was all that was done.” Pryor further testified that the defendant, when arrested, freely and voluntarily admitted the ownership of the liquor. This was the only evidence in the case except a pint cup with some liquid in it, which was not identified or connected in any way with the defendant. The learned trial judge, in declining to sanction the petition for certiorari, said: “In my opinion the quantity of the whisky found in applicant’s possession, and .the clandestine manner in which he received it (having had it shipped under an alias), are sufficient to warrant his conviction of the offense of ‘keeping liquor on hand for purpose of sale’, and I refuse the writ. I reach this conclusion as any practical man, from the facts proved, and beyond any reasonable doubt, and more especially in view of the fact that no explanation whatever was offered by the applicant. It is true that the evidence does not show the size of the barrel, but the fact remains that he did receive under an assumed name a. barrel of whisky, and had the same in Fitzgerald, and the police judge had the facts all before him.” It appears in the record, without contradiction, that the defendant was known indifferently as Will Lewis and as J. Jennings. The prosecutor himself testified that he never knew the defendant “until Saturday morning,” and had heard others say that his name was Jennings. So that the evidence does not show that J. Jennings was any more an assumed name than Will Lewis. But the mere fact that one might prefer to purchase liquor under an assumed name would not of itself be sufficient, to authorize the con 276 elusion that his purchase was designed for the purpose of illegal sale, rather than that he was anxious to avoid the opprobrium of being an excessive drinker. The case, therefore, really turns upon the question as to the quantity of the liquor, and the sufficiency of the proof of quantity to compel the conclusion that one would not purchase so large a quantity unless he intended to sell it. The trial judge was evidently controlled by the view that the receipt of such a quantity of liquor was sufficient to have authorized the mayor pro tern, to, conclude that the defendant could only have wanted so large a quantity because it was his purpose to engage in the illegal traffic of intoxicants; for, in concluding his judgment, he adverted to the fact that the evidence does not show the size of the barrel, hut that the fact remained that he did receive a barrel of whisky. In Everett v. Vidalia, 14 Ga. App. 664 (82 S. E. 50), we pointed out that there must, to constitute a violation of a municipal ordinance such as that now before us, be evidence of an intent to keep the liquor on hand for the purpose of sale, just as there can not be a violation of any penal law unless there be an intent to do an act forbidden by law. Since it is not unlawful to own and possess for one’s own use any quantity of intoxicants, no matter how large, mere ownership of a quantity of liquor extraordinarily large is not a circumstance from which the intent to violate the law by selling can of itself be implied. It is true that when taken in connection with other circumstances it may be a circumstance of great probative value. But considered alone, the possession of a barrel of whisky can not, as a matter of law, be said to be conclusive of an intent to sell. To so hold would he to discriminate between the owner of a large wine cellar and a person of more moderate means in such a way as practically to deny the latter the equal protection of the laws. If there had been any evidence that the defendant sold or attempted to sell the intoxicants which he delivered to the drayman, or perhaps even if he had made preparation to sell intoxicating liquors, or if any of the paraphernalia of a liquor seller had been found in his possession, the quantity of liquor might have been a pregnant circumstance which, together with other facts in the case, would have authorized his conviction. It may be (as argued by learned counsel for the city) that there was other evidence before the mayor pro tern, but this court is bound by the record, as was also our learned brother of 277 tbe trial bench, and for this reason, in the opinion of a majority of the court, the judge erred in refusing to sanction the petition for certiorari. Judgment reversed. '