Johnson v. Kinard , 102 Ga. App. 835 ( 1960 )

Felton, Chief Judge.

A possessory warrant will not lie to recover property seized by a public officer in performance of his duties. Raiford v. Hyde, 36 Ga. 93; King v. Ford, 70 Ga. 628.

In order to prevail in the trial court in this case it was incumbent on the defendant in error to prove that the personal property was taken and carried away as alleged in the affidavit and that the whisky had been in the peaceable and legally acquired possession of the defendant in error. The plaintiff’s evidence failed in both respects. There is no presumption of law that the possession of more than two quarts of tax-paid whisky in a wet county is legal. Such possession can be proved to be legal by evidence showing that the amount of whisky possessed was purchased at the rate of two quarts a day or that the possessor of such liquor was licensed by the State Revenue Department or was an agent of one holding a license. Ga. L. 1937-38, Ex. Sess., pp. 103, 124 (Code Ann. § 58-1080) provides: “Any retail licensee wilfully and knowingly selling more than two quarts per day to any purchaser shall be guilty of a misdemeanor and shall be punished as for a misdemeanor, and in addition thereto shall be subject to the other penalties coming under the jurisdiction of the Revenue Commissioner, such as suspension and revocation of license and forfeiture of bond.” Ga. L. 1937-38, Ex. Sess., pp. 103, 119 (Code Ann. § 58-1065) provides in part: “The authority to seize as contraband distilled spirits and alcohol, as set out herein, shall extend to counties where the sale and possession of the same is made legal by this Act . . . where such liquors, distilled spirits or alcohol are sold contrary to the provisions hereof.” Under the scheme of these acts the State Revenue Commissioner licenses managers, wholesalers and retailers. According to the acts already referred to in Code Ann. §§ 58-1024, 58-1025 and 58-1026, manufacturers can sell to wholesalers only in sealed containers and licensed wholesalers can only sell to other licensed wholesalers and licensed retailers, and licensed retailers cannot legally make a sale of more than two quarts on any one day to any one unlicensed. Ga. L. 1937-38, Ex. Sess., supra; Code Ann. §§ 58-1024, 58-1025, 58-1080. Since the defendant in error did not prove that he came into legal and peaceable possession of the whisky by purchasing not more than two quarts a day and did not prove that he or his principal was licensed by the State Revenue Department authorizing him to possess more than two quarts of whisky in a wet county, he failed to carry the burden of proof required by Code § 82-101. It is immaterial that the only penalty against the illegal possession of tax-paid whisky in a wet county is that the law makes the whisky contraband and subject to confiscation.

The court erred in overruling the motion for a new trial.

Judgment reversed.

Carlisle, Bell and Frankum, JJ., concur. Townsend, P. J., and Nichols, J., dissent. Jordian, J., did not ;participate because the case was actually decided before he took office.