Bloodworth v. State, 47996
| Decision Date | 14 March 1973 |
| Docket Number | No. 1,No. 47996,47996,1 |
| Citation | 197 S.E.2d 423,128 Ga.App. 657 |
| Parties | James P. BLOODWORTH v. The STATE |
| Court | Georgia Court of Appeals |
Glenn Zell, Atlanta, for appellant.
Lewis R. Slaton, Dist. Atty., James H. Mobley, Jr., Thomas W. Hayes, Morris H. Rosenberg, Atlanta, for appellee.
Syllabus Opinion by the Court
1. The defendant was indicted in three counts for selling heroin, each count referring to a different day and different transaction, and each reciting 'the date herein alleged being a material averment as to this count.' He was acquitted on the first count, convicted on Counts 2 and 3 and sentenced to two terms to be served consecutively. He maintains that, the sales being near in time and to the same person, he should be punished, if at all, by only one sentence. Such, however, is not the case. The rule is generally that time is not of the essence, and that on a general presentment there may be a conviction of the offense charged within the period of the statute of limitation, which may, however, be pleaded as res judicata to any offense fitting the averments of the indictment within such period. But where the date is alleged to be material, the contrary is true: the defendant may be convicted if and only if the proof corresponds to the date alleged, but no res judicata plea lies as to any other date. In Martin v. State, 73 Ga.App. 573(8), 37 S.E.2d 411 a multi-count indictment for maintaining a lottery made the date in each count a material averment and the court held: 'Under an accusation in the form in which this was drawn, there is no one day common to two counts, and the accusation does not charge a general offense, but each count charges a particular offense, and when the defendant is convicted on each of the 15 counts, 15 punishments as for a misdemeanor may be inflicted.' The same rule holds as to felony indictments. Gravitt v. State, 220 Ga. 781, 783, 141 S.E.2d 893.
2. Where there is no evidence and no contention on the part of the defendant that he falls within the class of those who may legally sell narcotics, and all the evidence adduced shows that he does not, it is not error for the court to charge the jury that the appellant did not fit under any of the exceptions to the Uniform Narcotic Act. Morton v. State, 190 Ga. 792, 801, 10 S.E.2d 836.
3. The court charged that criminal intent 'may be inferred from the proven circumstances or by acts and conduct, or it...
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Thomas v. State
...that the date of the offense is material. See Ledesma , 251 Ga. at 885 (1) (a), 311 S.E.2d 427 ; see also Bloodworth v. State , 128 Ga. App. 657, 657 (1), 197 S.E.2d 423 (1973) (Where it was alleged in each of three counts for selling heroin on different days in different transactions that ......
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Hunt v. State, A15A2064.
...supra, 306 Ga.App. at 424(2), 702 S.E.2d 458. Accordingly, I would affirm the trial court.1 See generally Bloodworth v. State, 128 Ga.App. 657, 658(1), 197 S.E.2d 423 (1973) ("The rule is generally that time is not of the essence, and that on a general presentment there may be a conviction ......
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Townsend v. State
...on an "occasion different" or "on a different date" than the first count). Compare Brown , 844 S.E.2d at 189 (3) ; Bloodworth v. State , 128 Ga. App. 657, 658 (1), 197 S.E.2d 423 (1973) (separate convictions could stand where "each count referr[ed] to a different day and different transacti......
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Townsend v. State
..."on a different date" than the first count). Compare Brown , 355 Ga. App. at 313 (3), 844 S.E.2d at 189 (3) ; Bloodworth v. State , 128 Ga. App. 657, 657 (1), 197 S.E.2d 423 (1973) (separate convictions could stand where "each count referr[ed] to a different day and different transaction, a......