Burns v. State

• Decision Date: 11 January 1973
• Docket Number: No. 1,No. 47473,47473,1
• Citation: 195 S.E.2d 189,127 Ga.App. 828
• Parties: Calvin W. BURNS v. The STATE
• Court: Georgia Court of Appeals

Page 189

195 S.E.2d 189

127 Ga.App. 828

Calvin W. BURNS v. The STATE.

No. 47473.

Court of Appeals of Georgia, Division No. 1.

Jan. 11, 1973.

Burt, Burt & Rentz, Van Cheney, Albany, for appellant.

Robert W. Reynolds, Dist. Atty., Albany, for appellee.

Syllabus Opinion by the Court

EVANS, Judge.

The defendant was indicted, tried and convicted in five counts for the possession and sale of marijuana and heroin as follows: (1) for possession of marijuana on the 20th day of January, 1972 (convicted and sentenced to serve 12 months); (2) possession of marijuana on the 2nd day of February, 1972 (convicted and sentenced to serve 12 months); (3) sale of marijuana on the 2nd day of February, 1972 (convicted and sentenced to serve two years); (4) possession of heroin on the 5th day of February, 1972 (convicted and sentenced to serve five years); and (5) sale of heroin on the 5th day of February, 1972 (convicted and sentenced to serve eight years). The order of the court required that the sentences run consecutively, and amounted to a total of 17 years. The appeal is from the judgment and sentence. Held:

The contention of the defendant is that the possession and sale of marijuana on the same day and the possession and sale of heroin on the same day merged, and that the court thus erred in charging the jury that it might convict the defendant of separate counts and in thereafter entering judgment against the defendant on the separate counts and sentencing him on the separate counts. Defendant contended there was a merger of several of the crimes charged.

'When the same conduct of an accused may establish the commission of more than one crime, the accused may be prosecuted for each crime. He may not, however, be convicted of more than one crime if (1) one crime is included in the other, or (2) the crimes differ only in that one is defined to prohibit a designated kind of conduct generally and the other to prohibit a specific instance of such conduct.' § 26-506, Criminal Code of Georgia (Ga.L.1968, pp. 1249, 1267).

The offense of sale of marijuana and heroin necessarily included the offense of possession of marijuana and heroin, that is, unless the evidence showed they were on different occasions on the same date. But in this instance the evidence showed that there was a merger of certain of the counts of possession and sale; thus, under the New Criminal Code the doctrine of merger is still the law in this State. See Walden v. State, 121 Ga.App. 142(4), 146-147, 173 S.E.2d 110; Gary v. State, 122 Ga.App. 151(2), 176 S.E.2d 478; Wells v. State, 126 Ga.App. 130(2), 190 S.E.2d 106.

This decision is not in conflict with the decision of the Supreme Court in Gee v. State, 225 Ga. 669, 171 S.E.2d 291, in which both the date of the offense (November 21, 1968) and the trial of the case (March 19, 1969) occurred prior to the effective date of the Criminal Code of Georgia (Ga.L.1968), pp. 1249, 1267). Consequently, the decision rendered in Thompkins v. State, 126 Ga.App. 683, 191 S.E.2d 555, which relies on Gee v. State, supra, is erroneous and is specifically overruled.

Accordingly, the court erred in charging the jury that a verdict of guilty could be returned as to each count of the indictment, including those counts where there was a merger as heretofore set forth; and erred in sentencing the defendant on those counts which were merged with other counts, which amounted to double jeopardy.

Judgment reversed.

BELL, C.J., and QUILLIAN, CLARK and STOLZ, JJ., concur.

HALL and EBERHARDT, P. JJ., and PANNELL and DEEN, JJ., dissent.

DEEN, Judge (dissenting).

1. I concur in the judgment insofar as a reversal on Count 1 of the indictment is concerned, but for a different reason. Count 1 charges possession of marijuana on January 20, 1972, and Count 2 possession of marijuana on February 2, 1972. Neither count makes the date an essential element of the offense. Therefore, under this indictment, proof of possession on February 2 and any other time within two years prior thereto constitutes but one offense. 'The state, in making out its case, is not confined to the day named in the accusation, but may prove the commission of the offense at any time within two years prior to the date of the accusation; and . . . whether acquitted or convicted, the accused cannot again be tried for such an offense, committed within the period of limitation governing the case on trial.' Cole v. State, 120 Ga. 485(2), 48 S.E. 156; Grantham v. State, 117 Ga.App. 444, 160 S.E.2d 676; Holmes v. State, 7 Ga.App. 570(3), 67 S.E. 693; White v. State, 9 Ga.App. 558, 71 S.E. 879; Daniel v. State, 83 Ga.App. 733, 734, 64 S.E.2d 690. Where a multicount indictment charges such an offense on several dates without making the day alleged in each count an essential element to be proved before a conviction can be had, although the State may prove the commission of the offense on each day alleged, only one punishment may be inflicted. Martin v. State, 73 Ga.App. 573, 577, 37 S.E.2d 411. I concur in the reversal as to Count 1 for this reason.

2. Coming to the fundamental differences between the decision in this case, Wells v. State, 126 Ga.App. 130(2), 190 S.E.2d 106 and that of Thompkins v. State, 126 Ga.App. 683, 191 S.E.2d 555, I thoroughly agree with Judge Evans in his statement that 'the doctrine of merger is still the law in this State,' which statement is made immediately after quoting the provisions of Code Ann. § 26-506, the substance of which is that if the same conduct establishes the commission of more than one crime the defendant may be prosecuted for both, but he cannot be 'convicted' of more than one if one is included in the other. Such cases depend on the 'same evidence' rule and show clearly that Code Ann. § 26-506 merely repeats what has always been the law in this State. In Bell v. State, 103 Ga. 397, 30 S.E. 294, the defendant was put on trial for assault and battery. The evidence as it unfolded established that the attack, if made, was for the purpose of committing a rape, the court discharged the jury and had the defendant bound over for assault with intent to rape, as to which he pleaded former jeopardy. Reversing the conviction the Supreme Court held (p. 402, 30 S.E. p. 296): 'But it is legally impossible to commit the offense of assault with intent to commit a rape without committing the offense of assault. The greater offense always includes the less . . . both assault and battery and assault become component parts of the felony, and under an indictment for the highest offense there may be a conviction of either of the lower ones.' This is simply the doctrine of 'included crimes' as set out in Code Ann. § 26-506. It has always been and is now the established law of this State. But if one crime is included in another it is only necessary to charge the defendant with the greater offense, since assault with intent to rape might have resulted in a verdict for simple assault, just as an indictment for murder may result in a conviction of involuntary manslaughter. Could this defendant, if indicted only for sale of heroin, have been found guilty of illegal possession only? That is the true question at issue so far as merger is concerned. But the case goes on to distinguish Blair v. State, 81 Ga. 629, 7 S.E. 855, where it was held that multi-count convictions for selling liquor without a license and selling liquor to a minor, the evidence showing a single sale, did not merge because each had an ingredient of the offense which was not a necessary element in and an essential part of the other. In one it must be proved that there was no license; in the other that the purchaser was a minor. The books are full of distinctions of this kind, all to the effect that there is no merger unless as a matter of law as well as a matter of fact all elements merge. Harris v. State, 193 Ga. 109, 114, 17 S.E.2d 573. Many states follow the rule that where the defendant commits a single act which...