Bienert v. State
Bienert v. State
Opinion of the Court
(After stating the foregoing facts.) It is contended by the plaintiff in error that the accusation here is fatally defective in that it does not negative all of the lawful ways under which the defendant might have sold the liquor in question, under the authority of Capitol Distributing Co. v. State, 83 Ga. App. 303 (63 S. E. 2d, 451). It is contended by the defendant in error that the accusation has been previously held by the court to be sufficient, and that this has become the law of the case, in Bienert v. State, supra. The two accusations, although identical, represent two different cases. However, the accusation in the Bienert case specifically charges a violation of Code (Ann. Supp.) § 58-1025, in that it charges the defendant, as general manager of a liquor company holding a wholesaler’s license, with a sale to one not the holder of either a wholesale or retail liquor license, these being the only two licensees, under said Code section, to whom a wholesaler may lawfully sell. The Capitol Distributing Co. case, on the contrary, while alleging that the defendants were not the holders of retailers’ licenses, failed to allege what license, if any, the defendants held, for which reason the indictment was held to be ambiguous, since it was impossible to say with any certainty whether the State intended to charge violations of wholesalers’ licenses, violations of licenses to manufacture, or sales without licenses of any kind.
It is contended in the first ground of the amended motion for a new trial that a charge that “The law presumes that every act which is itself unlawful was criminally intended unless and until the contrary is made to appear” is not applicable in cases such as illegal sales of liquor, which are not malum in se but only malum prohibitum. The excerpt of the charge is complained of as error because the defendant contends that the evidence demands a finding that the purchaser of the whisky, who was an agent of the State Revenue Department, represented himself to be an agent of the V. F. W. Club of Laurens County, which organization the defendant believed to be the holder of a “Federal permit” (by which the defendant apparently was referring to the Federal occupation tax levied against retail dealers in liquor, U. S. C. A., Tit. 26, Sec. 3250 (b) ) and as such entitled to purchase whisky. The defendant was the manager of Dodd Distributing Company, a licensed wholesale liquor dealer, and as such authorized to sell whisky at wholesale only to the holders of either wholesale or retail liquor licenses. One upon whom the Federal occupation tax for retailing liquor is levied may or may not be the holder of such licenses. It follows, therefore, that under Code (Ann. Supp.) § 58-1025, if the purchaser, although the holder of a “Federal permit”, was not the holder of a wholesale license and was not the holder of a retail license, the sale would be illegal. Ignorance of the law is not an excuse for its violation. Coleman v. City of Griffin, 55 Ga. App. 123
Special grounds 3 through 17 complain of errors in the charge of the court and failures to charge as requested in relation to the principal defense, that of entrapment. Taking the evidence and the defendant’s statement in its light most favorable to the defendant for the purpose of considering whether any errors in ‘the charge on entrapment, if made, would have required a reversal of this case, it appears that a request was made by the Retail Whisky Dealers’ Association to the Alcohol Control Unit in connection with alleged price violation; that pursuant thereto an employee of the Alcohol Control Unit of the State Revenue Department went to Macon and, after conferring with the attorney for the Retail Whisky Dealers’ Association and learning that the defendant or his company was suspected of making sales to persons not regularly licensed by the State, he went to the offices of Dodd Distributing Company, arriving just a few minutes before closing time on the Saturday noon preceding the long Fourth of July weekend; that he represented himself to be the agent of the V. F. W. Club of Laurens County, holder of -a “Federal permit” and that he needed a case of whisky for the club’s Fourth of July celebration; that the defendant at first refused to sell him the whisky but later reconsidered and sold him one case; that he did not make any inquiry whatever as to whether either the witness or his club was a holder of either a wholesale or a retail license. The evidence further showed-that the company of which the defendant was general manager made large and regular sales to persons in dry counties, some of whom
In Sutton v. State, 59 Ga. App. 198 (1, 2, 3,) (200 S. E. 225) it is held as follows: “The discovery of crime and the procurement of evidence by deception are not prohibited. A trap may be set. It is no ‘entrapment’ to commit a crime where the officer merely furnishes an opportunity to a criminal who is ready to commit an offense. ‘Entrapment’ exists where the idea and intention of the commission of a crime originates with an officer of the State, and he, by undue persuasion, incitement, and deceitful means, induces the defendant to commit an act (in violation of the literal terms of the prohibition law) which the defendant would not have committed except for the conduct of such officer.” Where one is suspected of being a violator of the law, a trap may be set, and the suspected person given such opportunity to violate the law as would be usual and ordinary under the circumstances. U. S. v. Wray, 8 Fed. 2d, 429; Dalton v. State, 113 Ga. 1037 (39 S. E. 468).
Thus, where an intention to commit a crime originates with the accused, or where, in the case of law violations of the same kind, the accused is suspected of carrying on a series of like offenses, it is permissible to set a trap by offering the suspected person an “opportunity to transgress”, the prohibition being imposed, however, that the temptation must not be extraordinary or the persuasion undue so that the defendant, by reason of the excessive reward offered, or perhaps by strong appeal to humanitarian or other motives, is compelled to do an act which he would not otherwise have done. Under these circumstances the defense of entrapment is good and a conviction unauthorized. But where, on the contrary “the officer merely furnishes an opportunity to one who is ready to commit an offense,” it does not constitute an entrapment. It does not appear here that any excessive temptation or persuasion of the type contemplated was offered. The price received was the regular wholesale price for the liquor involved. In fact, the only persuasion involved, and this is denied by the witness and appears only in the statement
Since the defendant’s main defenses, namely, that he did not intend to violate the law by making the sale under investigation, which he thought was to the holder of a “Federal permit” and therefore legal, and that he was entrapped, are held herein not to constitute good defenses in law under the evidence of this case, and since the defendant admitted the sale under consideration, a verdict of guilty was demanded. For this reason the' remaining grounds of the amended motion for a new trial are not considered, as they would at most constitute harmless error. Miller v. State, 69 Ga. App. 847 (2) (26 S. E. 2d, 851); Davis v. State, 77 Ga. App. 541 (49 S. E. 2d, 173); Hagar v. State, 71 Ga. 164, 167.
The trial court did not err in overruling the demurrers to the accusation or in overruling the motion for a new trial as amended.
Judgment affirmed.
Concurring Opinion
concurring specially. Under the Alcohol Control Act there are only three kinds of licenses issued by the State and each limits the authority of the holder thereof and in the absence of one of these licenses a person cannot sell a prohibited liquor even in a wet county. The three kinds of licenses are: (1) a manufacturer or distiller is authorized to sell to another manufacturer or distiller only in bulk and he can sell to a licensed wholesaler in sealed containers (Code, Ann. Supp., § 58-1024); (2) the holder of a wholesale license is authorized to sell to another licensed wholesaler and to a licensed retailer for purposes of resale (Code, Ann. Supp., § 58-1025); (3) the holder of a retail license is authorized to sell to consumers in certain amounts in unbroken packages (Code, Ann. Supp., § 58-1026). The distinction between the indictment in the
Just a word as to one of the ways in which the pleadings may be drawn so as to present the issues to the jury in a clear and easily understood way in the case of a violation of our general prohibition law: The general prohibition law as contained in Code §§ 58-101, 58-202, et seq., generally known as the “bone dry” law, is of force and effect in every county of this State, except to the extent that the prohibited liquors have been legalized under the limitations and restrictions of statutes or of statutes and elections held in conformity with them in the individual counties. Under the bone dry law, prior to the Act of 1937-38 (Ga. L., Ex. Sess., 1937-38, p. 103), an indictment which alleged that the accused sold one of the prohibited liquors on a named date in a named county in Georgia was a good indictment and not subject to demurrer, but the Act of 1937-38, which act itself specifically states that it is amending the bone dry law, further states in Section 1 that “this act shall be known as the Revenue Tax Act to legalize and control alcoholic beverages
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