223 S.E.2d 61 (Ga. 1976), 29464, Orkin v. State

Docket Nº:29464.
Citation:223 S.E.2d 61, 236 Ga. 176
Opinion Judge:HILL, Justice.
Party Name:William B. ORKIN et al. v. The STATE.
Attorney:[236 Ga. 199] Durwood T. Pye, D. Thomas Pye, III, Lewis M. Groover, Jr., Charlie Parker, Jr., Charles L. Weltner, Wesley R. Asinof, Atlanta, for appellants. Lewis R. Slaton, Dist. Atty., Carter Goode, Asst. Dist. Atty., Arthur K. Bolton, Atty. Gen., Atlanta, for appellee.
Case Date:January 27, 1976
Court:Supreme Court of Georgia

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223 S.E.2d 61 (Ga. 1976)

236 Ga. 176

William B. ORKIN et al.



No. 29464.

Supreme Court of Georgia.

January 27, 1976

        Rehearing Denied Feb. 11, 1976.

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       [236 Ga. 199] Durwood T. Pye, D. Thomas Pye, III, Lewis M. Groover, Jr., Charlie Parker, Jr., Charles L. Weltner, Wesley R. Asinof, Atlanta, for appellants.

       Lewis R. Slaton, Dist. Atty., Carter Goode, Asst. Dist. Atty., Arthur K. Bolton, Atty. Gen., Atlanta, for appellee.

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       [236 Ga. 176] HILL, Justice.

       Defendants William B. Orkin and Bobby Charles Bowen appeal from a verdict of guilty of the crime of 'conspiracy to commit murder' and jury sentences of five years imprisonment as to each defendant. The main issues on appeal involve the crime of conspiracy (Division 1) and the admission of certain electronic recordings into evidence (Divisions 2 and 3). Also in issue are the trial court's rulings on various motions and objections made by the defendants prior to and during trial, as well as the charge of the court. The conspiracy allegedly occurred in [236 Ga. 177] the summer of 1974. Other facts will be stated as they become necessary for consideration of the 27 enumerated errors.

       1. Defendants' Enumerations 3 and 5 assert that the trial court erred in denying their motions to dismiss the indictment and in arrest of judgment, which motions were based upon the defendants' contention that the Act creating the crime of 'conspiracy to commit a crime,' Code § 26-3201, is unconstitutional as containing matter not expressed in the title in contravention of Article III, Section VII, Paragraph VIII of the Georgia Constitution, Code Ann. § 2-1908. Defendants further contend that, if Code § 26-3201 is constitutional, it does not create the crime charged, i.e., conspiracy to commit murder, and that the indictment was deficient in that it did not allege murder 'with malice aforethought.'

       Prior to 1968, there was no Georgia statute declaring that conspiracy to commit a crime was a crime as such. In 1968, the General Assembly enacted a conspiracy statute, under a proper title (Ga.L.1968, p. 326), declaring it to be Code § 26-1902 and part of Code Ch. 26-19. At that same session, the general Assembly enacted the new Criminal Code of Georgia and included therein as Code § 26-3201, under Ch. 26-32, the crime of conspiracy (Ga.L.1968, p. 1249 at p. 1335). The new Code repealed former Code Ch. 26-19 (Ga.L.1968, at p. 1338). However, the title to the new Criminal Code omitted reference to Chapter 32-Conspiracy (Ga.L.1968, at pp. 1258-1259).

       In 1969, the General Assembly, under a proper title, amended the new Code so as to repeal and reenact the crime of conspiracy as Code § 26-3201 (Ga.L.1969, pp. 857, 858, 867). Defendants argue that the 1969 act cannot create the crime of conspiracy because in one and the same act the same subject matter was repealed and reenacted. They also argue that the 1969 reenactment, with a proper title, was nugatory because the 1968 enactment was nugatory for lack of a proper title. The effect of these arguments is that once reference to conspiracy was omitted from the title of the new Criminal Code, the General Assembly was powerless to correct the omission. We disagree; Code § 26-3201 (Ga.L.1969, pp. 857, 867 was validly enacted.

       [236 Ga. 178] Defendants contend that Code § 26-3201 does not create the crime of 'conspiracy to commit murder.' 1 The crime of conspiracy, or of criminal attempt (Code § 26-1001), can only be defined in conjunction with a second criminal Code section, i.e., the substantive crime involved in the conspiracy or attempt. Code § 26-3201 together with the substantive offense of murder, Code § 26-1101, created the crime with which the defendants were charged.

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       Defendants contend that the indictment charging them with the offense of 'conspiracy to commit murder' upon a named person, and specifying three overt acts (paying $7500, furnishing shotgun and describing victim's daily routine), is defective in that it fails to allege 'malice aforethought' so as to distinguish the crime charged from felony murder, Code § 26-1101(b). A person who conspires to commit murder does so with malice aforethought. The indictment described the crime with sufficient definiteness to inform the defendants and the jury of the charges against them. Chenault v. State, 234 Ga. 216(6), 215 S.E.2d 223 (1975); Ga.Code § 27-701.

       We find Code § 26-3201 (Ga.L.1969, pp. 857, 867) to have been validly enacted under a proper title, that in [236 Ga. 179] conjunction with another crime it defines a crime, and that the indictment in this case was sufficient to charge these defendants with that crime. We therefore find Enumerations 3 and 5 to be without merit.

       2. Defendants' Enumerations 4, 11 and 12 cite as error the overruling of motions to suppress evidence obtained by electronic surveillance. The motions to suppress were based on the defendants' contentions that (a) Georgia law does not authorize an investigation warrant to issue for the offense of conspiracy; (b) illegally obtained evidence formed the basis of probable cause upon which the investigation warrant was issued; (c) the order authorizing electronic surveillance of defendant Bowen failed to specify a particular description of the type of communication sought to be intercepted; and (d) the order was insufficient on its face because it failed to include the name of defendant Orkin as a known party.

       ( a) Wiretapping and surveillance are the subjects of federal and state law and both must be complied with where applicable.

       The federal statute authorizing wiretapping in certain cases and prescribing the procedure to be followed in order to obtain an interception order is 18 U.S. C.A. § 2510 et seq., part of the Omnibus Crime Control and Safe Streets Act of 1968. This act provides that, if authorized by state statute, the principal prosecuting attorney of a state or any political subdivision may make application for a wiretap order and a state judge of general criminal jurisdiction may issue such order complying with federal and state law, 'when such interception may provide or has provided evidence of the commission of the offense of murder, kidnapping (etc.) . . . or other crime dangerous to life, limb, or property, and punishable by imprisonment for more than one year, designated in any applicable State statute . . ., or any conspiracy to commit any of the foregoing offenses.' 18 U.S. C.A. § 2516(2). Thus the federal statute authorizes the issuance of state wiretap orders for the crime of conspiracy to commit murder by compliance with the requirements of both the federal and state statutes.

       Our state statutes on this subject appear in Code Ch. 26-30. Code § 26-3001 prescribes criminal offenses for [236 Ga. 180] eavesdropping, surveillance, and the use of devices to intercept telephone or other private communications. One of the exceptions to Code § 26-3001 is made for law enforcement officers performing official duties; see Code § 26-3004, which was held to be valid in Granese v. State, 232 Ga. 193(1), 206 S.E.2d 26 (1974). Code § 26-3004(c) provides that 'When there is probable cause to believe that a person . . . is committing or has committed . . . any felony involving bodily harm . . .' the district attorney may apply to the superior court judge for an investigation warrant permitting the use of wiretapping devices.

       Defendants argue that conspiracy to commit murder is not a crime within the meaning of Code § 26-3004(c) because the predecessor of our wiretapping law was enacted in 1967 (Ga.L.1967, p. 844) when there was no crime of criminal conspiracy, that in 1969 when conspiracy was made a crime it was not added to the offenses specified in

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Code § 26-3004(c), and moreover, they argue that a mere conspiracy involves no bodily harm. In substance, defendants thus argue that the General Assembly did not intend that conspiracy be a wiretappable offense. We disagree because the General Assembly used the words 'any felony involving bodily harm,' and the words 'bodily harm' would include murder, rape, battery, etc. We find that by the use of those words, the General Assembly intended to include 'any felony involving bodily harm' and we find further that conspiracy to commit murder, although subsequently enacted, is a felony involving bodily harm within the meaning of Code § 26-3004(c) for which an investigation warrant may issue.

       (b) Defendants next contend that the investigation warrant was issued on a finding of probable cause based on illegally obtained evidence and that the warrant was therefore illegal.

       Testimony at the hearing on the motions to suppress evidence reveals that defendant Bowen approached Detective C. E. Landrum of the Atlanta Police Department, a friend of Bowen's on May 13, 1974, with an offer to pay $5000 or more in cash if Landrum would kill an unnamed person who was 'giving some trouble' to an 'old friend' of Bowen's, or $1000 if Landrum would [236 Ga. 181] help Bowen contact a hired killer. Bowen called Landrum several times in the next few days in order to persuade him to assist in securing a killer. Landrum pretended to go along, but went to the district attorney's office to get advice on what action to take to avert the intended crime.

       A meeting was first arranged by Landrum between Bowen and a so-called 'hit man' who told Bowen that he would not do it himself but that he had an out-of-town friend who would. Bowen voluntarily offered this man $2500, which he refused.

       Arrangements were then made in phone conversations between Bowen and Landrum for Bowen...

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