
    Johnson vs. The State of Georgia.
    1. One who sells spirituous liquors by the quart must obtain the license and take before the ordinary the oath required of retailers.
    3. The absence of a witness who would testify that the oath prescribed in §1430 of the Code was taken before any other officer than the ordinary,, was not good ground for a continuance, it not appearing that the defendant had a license.
    3. An indictment for selling liquors by the quart without a license from the ordinary, need not allege that the defendant had no license from an incorporated town or city authorized by law to grant the same.
    Criminal law. License. Indictment Continuance. Before Judge Buchanan. Carroll Superior Court. April Term, 1878.
    Johnson was indicted for selling liquors by the quart without taking the oath before, and obtaining license from, the ordinary. He demurred to the indictment because it failed to allege that he had not obtained a license from the authorities of any incorporated town or city authorized to grant licenses. The demurrer was overruled. Defendant moved for a continuance on account of an absent witness (a magistrate) by whom he could show that he had taken the oath prescribed in the Code, §1420, before said justice. It was refused. He was found guilty, moved for a new trial, it was refused, and he excepted.
    G. W. Austin ; Mabry & Reese; Jackson & Lumpkin, for plaintiff' in error,
    cited as follows: (absent evidence material) Code, §§4565, 1420; (indictment demurrable) Code, §4628; 13 Ga., 435; 17 Ib.,631; 26 Ib., 604-5; 1 T. R., 141; 15 East, 455; Leach, 580; (no license needed) Cobb’s Dig., 1039; acts 1853-4, pp. 83, 34, 533; Code, §§4565, 1420; acts 1875, p. 102; (if so, onus on state) Arch. Cr. Pl. and Pr., 123; 3 Gr. Ev., §12; 1 Ib., §§78-80, and note; 24 Pick., 380; Code, §§1419, 1421; 7 Met., 306 ; 13 Ga., 439. Compare 17 Ga., 290; 50 Ib., 103, 106; Code, §§4566, 2842, 2849; 1 Ga., 621; 59 Ib., 145.
    S. W. Harris, solicitor general, for the state,
    cited as follows : (indictment good) Code, §§4565, 4628; (continuance rightly refused) Code, §§1420, 1421; Cobb’s Dig., 1038; (verdict right) 14 Ga., 55 ; 34 Ib., 348; Ib., 263; 42 Ib., 609 ; 45 Ib., 190.
   Warner, Chief Justice.

The defendant was indicted for a misdemeanor, and charged with having sold by the quart, in the county of Carroll, whisky, brandy, gin, and other spirituous liquors, without first obtaining a license from the ordinary of said county, and taking the oath prescribed by the Code of said state, the said William Johnson not haviug been tried by the corporate authorities of any town or city for the violation of the law. The defendant demurred in writing to said indictment before pleading thereto, which was overruled. The case then proceeded to trial, when the defendant was found guilty. A motion was made for a new trial on the grounds therein stated, which was overruled, and the defendant excepted.

The defendant was indicted for a violation of that part of the 4565th section of the Code which prohibits the sale of spirituous liquors by the quart without the license and taking the oath prescribed in the Code. See sections 1419 and 1420 as to what officer is to grant the license, administer the oath, and the nature of the oath required. If a person desires to sell spirituous liquors by the quart, he must obtain a license to do so from the ordinary of the county, and take the oath prescribed by §1419 before said ordinary, otherwise he will be guilty of a misdemeanor, and liable to be indicted and punished as prescribed by the 4565th section, under which the defendant was indicted.

There is no pretense that the defendant had a license to sell spirituous liquors by the quart from the ordinary of Carroll county, or that he took the oath required before the ordinary of that county. Therefore there was no error in overruling the defendant’s motion for a continuance to enable him to prove by an absent witness that he had taken the oath required before a justice of the peace.

It is only when the defendant is indicted for retailing spii’ituous liquors in quantities less than one quart that the indictment should contain the negative averment that it was not sold within the limits of any incorporated town or city authorized by law to grant licenses. There was no error in overruling the demurrer to the indictment, nor in overruling the defendant’s motion for a new trial.

Let the judgment of the court below be affirmed.  