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Violating liquor law; from Thomas Superior Court-- Judge Lilly. October 26, 1951.
1. The motion to dismiss the writ of error, on the ground that the questions presented are moot, is denied.
2. Where, in an indictment charging the defendant with transporting non-tax-paid liquor, it is alleged that the illegal liquor was transported in a 1948 Ford Sedan, Motor No. 899A-2155562, but the proof shows only that it was a 1948 Ford sedan, there was a fatal variance between the allegata and probata; notwithstanding it would not have been necessary to allege the motor number in the first instance.
The defendant, Oscar Key, was indicted upon the charge that he did unlawfully "transport, ship or carry, or cause to be transported, shipped, or carried from a point without this State, or from place to place within the State, by means of one 1948 Ford sedan automobile, Motor No. 899A-2155562, certain spiritous, vinous, malted, fermented or intoxicating liquors; to wit: seventy-five gallons of liquor, the immediate container or containers thereof which did not bear the tax stamps prescribed by the State Revenue Commissioner of Georgia." He was tried, convicted, and sentenced. He filed a motion for a new trial, based upon the usual general grounds and one special ground, which was overruled, and he excepted. He took the case, by writ of error, to the Supreme Court, and that court transferred the case here for the reason that the defendant had not properly preserved his exceptions to the trial court's ruling on the constitutional questions. See Key v. State, 207 Ga. 552 (63 S. E. 2d, 356).
1. Where one is convicted under a general accusation charging him with transporting and possessing non-tax-paid liquor, and subsequently he is again brought to trial on an accusation for possessing non-tax-paid liquor during the same period of the statute of limitations covered by the first general accusation, under which he had already been convicted, and on this second trial he pleaded the former conviction as former jeopardy, and such plea, on appeal to this court, was held to be valid (Key v. State, 83 Ga. App. 839, 65 S. E. 2d, 278), such decision by this court does not render moot the questions on appeal from a conviction under an indictment for transporting non-tax-paid liquor during the same period of the statute of limitations covered by the first accusation, where in such latter case there was no plea of former jeopardy, such as was entered in the case for possessing non-tax-paid liquor. The plea of former jeopardy is a personal privilege and may be waived (Hill v. State, 41 Ga. 484; Hall v. State, 103 Ga. 403, 29 S. E. 915; Brantley v. State, 132 Ga. 573, 64 S. E. 676), and going to trial without filing any plea of former jeopardy or invoking any action on such a plea amounts to a waiver of such privilege. Sable v. State, 14 Ga. App. 816 (82 S. E. 379); Norwood v. State, 3 Ga. App. 325 (59 S. E. 828); Hall v. State, supra. The motion to dismiss the writ of error in this case, on the ground that the questions presented were rendered moot by our decision in Key v. State, supra, is denied.
2. In special ground 1 of his amended motion for a new trial, counsel for the defendant insists that there is a fatal variance between the allegations of the indictment and the proof, in that in the indictment the defendant is charged with transporting the non-tax-paid liquor in a 1948 Ford sedan automobile, Motor No. 899A-2155562, whereas the proof only shows that the non-tax-paid liquor was transported in a "1948 Ford sedan." In his brief counsel for the defendant stands alone upon this question of the allegata meeting the probata, and all other features of the general grounds are abandoned. The point that there is a fatal variance between the allegata and probata is well taken. The gravamen of the acts made criminal under the provisions of Code, Ann. Supp., 58-1020, transportation of non-tax-paid liquor, and Code 58-201, transporting liquor, is the transportation itself. The indictment need not have alleged the motor number of the automobile so long as it alleged sufficiently the means of transporting the liquor, but having described the means of transportation with unnecessary particularity, the State was bound by that statement and it was necessary to prove the indictment as laid. "The Supreme Court, in Fulford v. State, 50 Ga. 593, quoting from Bishop's Criminal Procedure, 234, 235, said: 'If the indictment sets out the offense as done in a particular way, the proof must show it so, or there will be a variance. And where there is a necessary allegation which can not be rejected [in the instant case, the means of transportation], yet the pleader makes it unnecessarily minute in the way of description, the proof must satisfy the description as well as the main part, since the one is essential to the identity of the other.' " Hightower v. State, 39 Ga. App. 674, 675 (148 S. E. 300). As was said in Southern Express Co. v. State, 23 Ga. App. 67, 70, 71 (97 S. E. 550), "Of course, the rule . . . would not apply 'if any unnecessary averments, disconnected with the circumstances which constituted the stated crime,' be alleged. Such unnecessary averments need not be proved, but may be rejected as surplasage." But as we have said a necessary and essential element of the crime charged is the means of transportation could be rejected, the one being descriptive of the other. See also, in this connection, Wright v. State, 52 Ga. App. 202 (182 S. E. 862). It follows, therefore, that on account of
this variance, the trial court erred in overruling the motion for a new trial and that judgment must be
Reversed. Gardner and Townsend, JJ., concur.
A. J. Whitehurst, for plaintiff in error.
Saturday May 23 05:43 EDT

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