Hussey v. State , 69 Ga. 54 ( 1883 )

Jackson, Chief Justice.

The defendant was indicted for, and found guilty of, the offence of keeping open a tippling house on the Sabbath day. His motion for a new trial having been denied by the court below, the case is brought here on errors assigned on all the grounds of the motion.

1. There is no room, at all, for doubt as to his guilt. It is the strongest case, of the sort, ever brought to this court within our knowledge and recollection, and no matter how many trials he might have, the facts and law absolutely demand the verdict of guilty, and such it would be unless both facts and law were outraged by the jury and their oaths violated. He occupied a floor, in the front room of which he had his office on one side and bar on the other, and the rear room of which was a restaurant with an open door between them. In the rear, or restaurant room, the liquors were served to a number of gentlemen at one time during that Sunday, and to another by himself later in the same day. Neither wanted, or got, a mouthful to eat; all went for drinks, and got them ; some whisky, others beer. They did not drink at the bar, but sat at tables, where the liquor was served. The door on the street, through the bar and office room into the restaurant, was kept open to the extent that any visitor had only to push it and go in and tipple in the restaurant. The counter, where, on other days drinking could be done, was covered by canvas from the ceiling to the floor, so as to be invisible itself, and to conceal the bottles on shelves behind, and on it in brazen letters was the announcement, Bar closed,” and all the drinking was carried on in the rear and restaurant room. This fact, that the ostrich thus hid his head in the sand, and thereby imagined that his body was all covered too, is absolutely assigned as the legal reason why he was not visible to the keen eye of the law, which penetrates and despises all subterfuge and deceit! But one witness, though the canvas tried to hide the bird’s head, actually did see poked out through a sort of aperture or window, the bill or beak which let out the liquor from the bar to servants in the restaurant. So that the foolish bird did not-even keep all his head hid all the time!

It makes no difference in law whether the place be called a bar room, or a glee club resort, or a parlor, or a restaurant, if it be a place where liquor is retailed and tippled on the Sabbath day, with a door to get into it, so kept that anybody can push it open and go in and drink, the proprietor of it is guilty of keeping open a tippling house on Sunday. It makes no difference if the drihking be done standing or sitting — at a bar or around a table— it is tippling, and the place where it is done is a tippling house ; and if anybody wishing to drink can have access thereto — if ingress and egress be free to all comers — it is a tippling house kept open bn Sunday. Minor vs. The State, 63 Ga., 318. Harvey vs. The State, 65 Ga., 568.

2. Where, as in this case, the evidence demands the verdict, inaccuracies, or even errors of the court, unless of very material gravity, will not require a new trial. 42 Ga., 308, 609; 14 Id., 55; 34 Id., 263; 45 Id., 190.

3. In this case there are no serious errors, if any at alb It certainly was right to overrule the demurrer to the indictment. It alleged that the offence was in Chat-ham county, and the particular location of the house was unnecessary. Dohme vs. The State, not yet reported.

4. It was right to admit evidence that the drinking was done in the place, to show that it was a tippling house.

5. It was right to tell the jury that it made no difference in law whether the bar was open or hid, if the liquor was retailed in the restaurant and the tippling was done there.

6. It was right to tell , the jury that it made no difference in law whether the door was open or shut, if it was so kept that anybody could push it and go in and drink and tipple. In the language used by the court, we fail to see any expression or intimation of an opinion as to the evidence, wh,at it was. The legal effect of it is proper for the court to tell the jury, leaving it to them to judge of the law just as the judge did. See charge at the head of this opinion, in the report.

7. It was not wrong to tell the jury that the grand jury had presented the defendant, and there was no prosecutor. It might have been omitted, but we know of no reason why the court should not tell the jury the nature of the accusation, and how the charge got into court.

8. Perhaps the judge should have said nothing about a recommendation to mercy at all; but there is certainly no such error in what he did say, as to require a new ■trial. He told them, in effect, that it was a case not punishable by confinement in the penitentiary, and not one where they would be authorized to recommend to mercy, 'but he did not forbid them to do so, though it was unnecessary.

9. The sentence is not severe for the offence. The recommendation seems to have done service to the defendant. He ought not to complain of it.

On the whole, we repeat, that the case is wholly without excuse or the pretence of palliation. The very fact of the effort to hide the bar and the liquor shelves, and yet keep the restaurant room open for tippling, shows the consciousness of knowing that the law was being violated, and that some attempt was necessary to keep it dark, arid to shut out the light. But “ the way of the transgressor is hard,” and sooner or later light will be let in upon his dark places, and exposure and .punishment will follow.

Judgment affirmed.