White v. State , 93 Ga. 47 ( 1894 )

Simmons, Justice.

1. The exceptions to the indictment were not properly taken. They were made in the motion for a new trial, the overruling of which is the error complained of in this court, but do not appear to have been made elsewhere. Exceptions which go merely to the form of an indictment should be made before the trial (Code, §4629); and even if made and ruled upon then, cannot properly be made the basis of a motion for a new trial. Flemister v. The State, 81 Ga. 768. For matters affecting the merits, the remedy after trial is by motion in arrest of judgment, and not a motion for a new trial. This court, it is true, in Wood v. The State, 46 Ga. 324, considered and sustained an exception which would have been good in arrest of judgment, though made in that case in the motion for a new trial, but disapproved the practice of including such exceptions as this in motions for a new trial, and said “ a motion in arrest of judgment is the proper mode of getting at such a defect as this, since i,f the indictment is bad, a new trial cannot be had upon it.” “We kuow of no authority for demanding a verdict on a bad indictment.” See also Gibson v. The State, 79 Ga. 345(2).

2. Clearly there is no merit in the exception that the name of the legally elected foreman of the grand jury does not appear upon the bill of indictment, and that consequently it does not legally appear that the grand jury passed upon the bill and found it true. In the transcript of the record the indorsement “ true bill ” appears on the indictment, and under it the words “Frank W. Quarles, Sr., Foreman”; and in the list of grand jurors with which the indictment opens, the same name appears, and is the first on the list, though he is there designated as “foreman pro tem.” In McGuffie v. The State, 17 Ga. 498(8), the view is expressed that the signature of the foreman to the return of “ true bill” is not essential; but if it is,' the presumption is that the person who signed acted as foreman with the authority of the grand jury. (Grinad v. The State, 34 Ga. 270.)

3. In the case of Grant v. The State, 87 Ga. 265, it was ruled that, “ in a prohibition county, a person who receives money from another with a request to procure whisky, and who shortly afterward delivers the whisky, may be treated as the seller if no other person filling that character appears, and if it is not shown where, how or from whom the wdhisky was obtained.” See also Paschal v. The State, 84 Ga. 326. If it should be made to appear that he bought it from another, and acted simply as the agent or friend of the person to whom he delivered it, paying that person’s money for it and having himself no interest m the liquor sold or in the money after it was paid, he would not be guilty of selling. It would not be necessary for the accused to show that the person from whom he bought was a legally authorized dealer. If the accused was the agent of the buyer and not of the seller, it does not matter whether the person from whom he obtained the liquor was legally authorized to sell or not; the mere aiding and abetting an illegal sale in this way would not render him guilty as a selLer. Decisions are numerous in other States, to the effect that the purchaser, although he knows that the circumstances will render the sale illegal, is not guilty of any offence by soliciting the seller to violate the law, or by aiding and abetting the crime to the mere extent of buying the liquor, unless the statute expressly prescribes a punishment for him (see Black on Intoxicating Liquors, §381, and cases cited); and there is nothing in our own statutes or the decisions of this court to the contrary. See especially on this subject the reasoning of Shaw, C. J., in Commonwealth v. Willard, 22 Pick. 476, quoted in the work of Mr. Black, above cited. The instructions complained of in the 6th ground of the motion for a new trial seem to require the accused to show that the person from whom he obtained the liquor was a regularly authorized dealer; and they are to that extent objectionable. As to the concluding clause of these instructions, it is sufficient to say, that it being incumbent on the accused to explain where, how and from whom he got the liquor, and his own statement being the only explanation offered, the jury would be authorized to reject it and find him guilty if they believed it was a mere subterfuge to cover up an unlawful sale by himself.

4. The verdict is not sustained .by the evidence, for the evidence fails to show that the transactions in proof took place before the finding of the indictment. The indictment was found on the 18th of October, 1892, the trial took place nearly a year after that date, to wit, in September, 1893, and the evidence failed to show anything as to the time when the liquor was obtained, further than that it was within the two years immediately preceding the trial. So for aught we can know from this record, the accused may have been convicted upon proof of an act for which he was not indicted. To authorize a conviction it must appear affirmatively that the sale was made before the indictment was found. Patton v. The State, 80 Ga. 714. Judgment reversed.