Bradford v. State, s. 47331 and 47332
| Decision Date | 14 July 1972 |
| Docket Number | Nos. 47331 and 47332,No. 3,s. 47331 and 47332,3 |
| Citation | 191 S.E.2d 545,126 Ga.App. 688 |
| Parties | Ralph W. BRADFORD v. The STATE (two cases) |
| Court | Georgia Court of Appeals |
Paul C. Myers, Atlanta, for appellant.
Lewis R. Slaton, Dist. Atty., Joel M. Feldman, Morris H. Rosenberg, Joseph J. Drolet, Atlanta, for appellee.
Syllabus Opinion by the Court
1. In civil cases, Code Ann. § 81A-142 specifically provides for consolidation of trials in actions involving a common question of law or fact, but only if all parties thereto consent. In criminal cases, while no statute expressly deals with the question, the same rule obtains. See 59 A.L.R.2d Anno., 841, 859. Morris v. Aderhold, 201 Ga. 533(3), 40 S.E.2d 747 holds that where a party is accused of separate and distinct violations the cases may be agreement be tried jointly, but this cannot be done except by consent. In Sides v. State, 213 Ga. 482, 485, 99 S.E.2d 884 the Supreme Court agreed with the solicitorgeneral that clearly he could not try the defendant simultaneously on three indictments without the defendant's consent. A waiver will result from a failure to object to the procedure. McGill v. State, 226 Ga. 802(1), 177 S.E.2d 675.
The defendant here was jointly indicted with another on two counts of possession and sale of narcotics. A search following his arrest in connection with the narcotics sale resulted in the discovery of a pistol on his person and a two-count indictment issued against him singly based on illegal possession of the firearm. The defendants elected to sever. Bradford was tried under consolidated indictments and found guilty on each of the four counts involved. The evidence against him on the narcotic violations was weak, and the hesitation of the jury is shown by the fact that the court after some time called them in to urge them to agree, and also by the fact that misdemeanor punishment was recommended, although this recommendation was not followed. Under these circumstances it cannot be said that the consolidation of the cases was not prejudicial to him. Nor were the felony and misdemeanor charges in any way related in such manner that proof of one offense would tend to support proof of the other. The defendant objected to simultaneous trial under the two indictments, and he had a right to separate trials in the absence of consent to joinder. Nothing to the contrary appears in Code Ann. § 26-506 (Ga.L.1968, pp. 1249, 1267) relating to multiple prosecutions for the same conduct, and requiring that several crimes arising from the same conduct, if known and if within the jurisdiction of the court, must be prosecuted in a single prosecution, since the offenses of selling narcotics and possessing a pistol without a license do not arise from the same conduct. We observe that McGill v. State, supra, decided in 1970, is based on waiver under the general rule and not on the 1968 statute. What is said here, of course, relates to separate indictments and does not deal with a multi-count single indictment. The impermissible consolidation of indictments is error requiring a new trial in each case.
2. The court properly overruled a motion to suppress evidence of the pistol found on the defendant's body during a search allegedly based on an illegal arrest without a warrant. The offenses of possessing and selling narcotics were...
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Smith v. State
...281 (1988). 2. "[Smith] next argues that the trial court erred in denying his motion for severance, relying upon Bradford v. State, 126 Ga.App. 688 (191 SE2d 545) (1972), for the proposition that consolidation of separate indictments is impermissible unless the defendant has consented to su......
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Chumley v. State, 30435
...case, the same conduct of the accused was alleged to establish the commission of both crimes (which distinguishes Bradford v. State, 126 Ga.App. 688, 191 S.E.2d 545 (1972), urged by Chumley). See, Code Ann. §§ 26-1902, 26-9908(a). Therefore, under Code Ann. § 26-506(a) he may be prosecuted ......
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Bridges v. State
...a defendant cannot be tried on consolidated indictments without his consent is inapposite in that this sole case, Bradford v. State, 126 Ga.App. 688, 191 S.E.2d 545 (1972), deals with "separate and distinct violations" (narcotics trafficking and illegal possession of a firearm), rather than......
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State v. Shuman
...is not per se ineffective assistance of counsel. The cases may be tried jointly with the consent of the defendant. Bradford v. State, 126 Ga.App. 688(1), 191 S.E.2d 545. It is possible that the defendant and his counsel consolidated the indictments, one of which charged the defendant with r......