Moss v. State , 6 Ga. App. 524 ( 1909 )

"Russell, J.

The court erred in overruling the demurrer to the indictment. “Mere preparatory acts for the commission of a crime, and not proximately leading to its consummation, do not constitute an attempt to commit the crime.”' The present case is controlled hy the ruling of the Supreme Court in Groves v. State, 116 Ga. 516 (42 S. E. 755, 59 L. R. A. 598). Judgment reversed.

Indictment for misdemeanor, from Bartow superior court— Judge Fite. January 18, 1909.

Argued March 9,- — Decided July 31, 1909.

The indictment charged D. P. Moss with being guilty of an attempt to sell spirituous and intoxicating liquor, by having in his possession, custody, and control four barrels of whisky, which he was hauling in a wagon, for the purpose of illegal sale, from Cass Station in Bartow county to a “blind tiger,” a place called Poplar Pit, in Cherokee county, ❖here the whisky was to be illegally sold by H. P. Henry, who was in charge of and running the “blind tiger,” and who had hired Moss to haul the whisky for the purpose aforesaid, Moss knowing the facts and the purpose just stated; and while so having and hauling the whisky, Moss was arrested and the whisky levied on by the arresting officer, and the sale of it was thereby prevented.

Before arraignment and plea the accused filed a demurrer to the indictment, and for grounds of demurrer said: (1) “There is no offense against the laws of Georgia in Bartow county set out in said indictment; if the defendant attempted to commit a crime that could only be consummated in Cherokee county, the superior court of Bartow county would have no jurisdiction of it.” (2) “The indictment charges the defendant with the offense of misdemeanor, whereas the section under which it was framed provided a punishment for an attempt to commit an offense; a person guilty of committing the offense of selling whisky would be guilty of a misdemeanor, whereas a party who is not indicted for the offense, but fox the attempt to commit it, is not guilty of a misdemeanor, but of an attempt to commit the misdemeanor, although he is punished as for a misdemeanor.” (3) “The indictment does not set out any act done towards the commission in Bartow county of the offense of illegally selling whisky, and the superior court Cherokee county would alone have jurisdiction of the attempt to sell whisky in Cherokee county.” (4) “The superior court of Bartow county could not convict defendant of anything he did or was responsible for in Cherokee county. Defendant specially demurs to anything set out in indictment in reference to H. P. Henry or the illegal sale by him of whisky in Cherokee county.. Defendant demurs to so much of indictment as charges defendant with hauling whisky from Bartow copnty to Cherokee county, as it is irrelevant, unnecessary, and unfair to him.” The demurrer was overruled, and the accused excepted.

George F. Gober, for plaintiff in error. Thomas C. Milner, solicitor-general, George W. Stevens, contra.