Byington v. State, 39318

• Decision Date: 22 June 1962
• Docket Number: No. 39318,No. 2,39318,2
• Citation: 106 Ga.App. 247,126 S.E.2d 698
• Parties: B. G. BYINGTON v. The STATE
• Court: Georgia Court of Appeals

Page 698

126 S.E.2d 698

106 Ga.App. 247

B. G. BYINGTON v. The STATE.

No. 39318.

Court of Appeals of Georgia, Division No. 2.

June 22. 1962.

Rehearing Denied July 5, 1962.

Syllabus by the Court.

The court did not err in overruling the defendant's motion for a new trial.

Covington, Kilpatrick & Storey, J. S. Kilpatrick Rome, Sell & Comer, Macon, for plaintiff in error.

Wayne W. Gammon, Solicitor, Cedartown, for defendant in error.

FRANKUM, Judge.

1. On July 12, 1961, B. Grady Byington was convicted in the City Court of Polk County of the offense of barratry under an indictment which had been transferred to that court by the superior court of said county. The indictment charged that on the 4th day of July, 1959, he did '* * * seek out and propose to another person, towit: Mrs. Betty Ann Queen, that she present and urge a suit in tort for the death of her husband, Jimmy D. Queen, against the Central of Georgia Railway Company * * *.' (By the time of the trial Betty Ann Queen had remarried and was Betty Ann Doeg, however, for simplicity, was will refer to her as Betty Ann Queen.) The indictment was drawn under paragraph 3, Section 1, of Act No. 514 of the General Assembly, Ga.L., 1957, pp. 658, 659. This statute was repealed by Ga.L., 1960, pp. 1135-1137, but the indictment alleges that the crime was committed on July 4, 1959. 'All crimes shall be prosecuted and punished under the laws in force at the time of the commission thereof, notwithstanding the repeal of such laws before such trial takes place.' Code § 26-103.

The caption of Act No. 514, Ga.L., 1957, pp. 658, 659, is as follows: 'An Act to define, for the purposes of this Act, the crime of barratry; to define the crime of conspiracy to commit barratry and provide a penalty therefor; to define the terms used in this Act; to repeal conflicting laws; and for other purposes.' The first sentence of Section 1 of the act is as follows: 'For the purposes of this Act the crime of barratry is hereby defined as any of the following:' Paragraph 3 of Section 1 of the act reads as follows: 'Any person who seeks out and proposes to another person that they present and urge a suit against another person, the State of Georgia, the United States or any other legal entity, shall be guilty of the crime of barratry.' The crime defined in this part of the act was not designated as a felony, and no penalty was specifically fixed therein, or elsewhere in the act, for a violation of Section 1, paragraph 3 thereof. Code § 26-101 provides: 'The term felony means an offense, for which the offender, on conviction, shall be liable to be punished by death or imprisonment in the penitentiary, and not otherwise. Every other crime is a misdemeanor.' (Emphasis ours.) Therefore, a violation of the law under which the defendant was indicted would have constituted a misdemeanor.

The General Assembly had full knowledge of this Code section when it passed the law under which the defendant was indicted. Spence v. Rowell, 213 Ga. 145, 97 S.E.2d 350; Harrison v. Walker, 1 Ga. 32. Therefore, Code § 26-101 and the law under which the defendant was indicted, being laws on the subject of crime, must be construed with reference to each other, and when thus construed, the conclusion is necessarily reached that a violation of Section 1, paragraph 3 of Act No. 514, Ga.L., 1957, pp. 658, 659, constituted a misdemeanor punishable under the provisions of Code Ann. § 27-2506 (Ga.L.1957, pp. 477, 482), which provides: 'Except where otherwise provided, every crime declared to be a misdemeanor shall be punished by a fine not to exceed $1,000, confinement in the county or other jail not to exceed six months, to work on the public works in such public works camp or other appropriate institution under the jurisdiction of the State Board of Corrections not to exceed 12 months, any one or more of these punishments in the discretion of the trial judge.'

The defendant contends that the decisions in Johnson v. State, 169 Ga. 814, 152 S.E. 76; Hill v. State, 53 Ga. 125; Gibson v. State, 38 Ga. 571; and Jenkins v. State, 13 Ga.App. 695, 79 S.E. 861; s. c., 14 Ga.App. 276, 80 S.E. 688, require a ruling that when a statute fails to specifically provide for punishment for a violation thereof, there can be no punishment imposed upon a conviction for the violation of such statute. But having reached the conclusion that under the statutory law of this State a penalty was fixed for a violation of the provision of law under which the defendant was convicted, these cases are not applicable. Of course, if there is anything in these cases in conflict with the statutory law, we are bound to follow the statutory law. Huguley v. Huguley, 204 Ga. 692, 51 S.E.2d 445; Stein Steel & Supply Co. v. Tate, 94 Ga.App. 517, 95 S.E.2d 437.

By treating these statutes in pari materia to reach the conclusion that the offense described by the law under which the defendant was indicted was, by operation of law, declared to be a misdemeanor, we are following the clear policy of this State governing construction of statutory enactments. 'And it is well settled in this jurisdiction that all statutes are presumed to be enacted by the legislature with full knowledge of the existing condition of the law and with reference to it; that they are to be construed in connection and in harmony with the existing law; and that their meaning and effect will be determined in connection not only with the common law and the Constitution, but also with reference to other statutes and the decisions of the courts.' Spence v. Rowell, 213 Ga. 145, 150 ,97 S.E.2d 350, 354, supra.

More specifically to the point, the Supreme Court stated in Huntsinger v. State, 200 Ga. 127, 130, 36 S.E.2d 92, 95: 'The first principal announced in the Wright [v. State, 166 Ga. 1, 141 S.E. 903] case, supra, that statutes relating to the same subject-matter (in pari materia) should be considered and construed together, follows the rule which has been in effect in this State since the earliest opinions of this court. The rule has been more broadly expressed in Barron v. Terrell, 124 Ga. 1077, 1078, 53 S.E. 181, where, with reference to the effect of adopting the Code of 1895, this court held: 'The effect of the act adopting the present Code was to enact into one statute all the provisions embraced in the Code. Central [of Georgia] R. Co. v. State, 104 Ga. 831, 31 S.E. 531, 42 L.R.A. 518. And in construing any section of the Code, we must treat it as a single statute forming one homogeneous and consistent body of laws, and each Code section is to be considered in explaining and elucidating every other part of the common system to which it belongs.' The rule as stated in Barron v. Terrell, supra, was first laid down in Harrison v. Walker, 1 Ga. 32, and followed in Hester v. Young, 2 Ga. 31, 43; Henderson's Ex'rs v. Alexander, 2 Ga. 81, 85; McDougald v. Dougherty, 14 Ga. 674; Thomason v. Fannin, 54 Ga. 361, 363; Bealle v. Southern Bank of Georgia, 57 Ga. 274; Gillis v. Gillis, 96 Ga. 1, 11, 23 S.E. 107, 30 L.R.A. 143, 51 Am.St.Rep. 121; Sampson v. Brandon Grocery Co., 127 Ga. 454, 56 S.E. 488, 9 Ann.Cas. 331; Cook v. Wier, 185 Ga. 418, 421, 195 S.E. 740. The authorities cited above, holding that statutes in pari materia are to be construed together, involved civil law. The same rule of construction applies to sections of the Penal Code, and the construction of criminal statutes. Shaw v. State, 102 Ga. 660, 663, 29 S.E. 477; Tribble v. State, 168 Ga. 699, 701(4), 148 S.E. 593.' See also Maynard v. Thrasher, 77 Ga.App. 316, 48 S.E.2d 471, and Ryan v. Commissioners of Chatham County, 203 Ga. 730, 48 S.E.2d 86.

There is also another principle of law standing in the background which is applicable to the instant case, namely, while penal statutes must be strictly construed, the construction should be a reasonable one. Pritchett v. State, 51 Ga.App. 228, 179 S.E. 915. Chief Judge Russell, speaking for the court, stated the principle in Moore v. City of Thomasville, 17 Ga.App. 285(3), 86 S.E. 641: 'While a penal statute should be strictly construed, the construction should be a reasonable one; and where two or more constructions could be given, that one should be adopted which will strengthen the law and make it effective, rather than one which will 'draw its teeth' and render it unable to 'bite." As stated in Accident & Casualty Ins. Co. of Winterthur, Switzerland, v. Cook, 72 Ga.App. 241, 248, 33 S.E.2d 571, 576: 'The rule of strictness in the construction of penal statutes does not require an interpretation which defeats the very object of the law.' See also Sapp v. State, 99 Ga.App. 657, 661, 109 S.E.2d 841. To hold in accordance with the defendant's contention that punishment must be fixed in the very statute which makes certain acts penal would defeat the imposition of punishment under the majority of the misdemeanor statutes of our State.

In view of the above the court did not err in any of the following respects: First, in overruling the defendant's demurrer to the indictment; second, in overruling the defendant's objection to the imposition of sentence after he had been convicted; and third, in denying the defendant's motion in arrest of judgment.

2. We now come to the question as to whether the other assignments of error in the motion for a new trial present grounds requiring reversal of the judgment overruling the motion.

By special ground 1 of this motion the defendant contends that the court erred in admitting in evidence the following answers to questions propounded by the solicitor to the mother of Betty Ann Queen over his objection: 'Q. Do you remember what kind of car Mr. Byington was driving at the time he came? A. He was driving a Cadillac, I don't know what model. Q. How did Mr. Byington propose to take you and Betty Ann to Birmingham? A. Well, he said it would be very comfortable in his car, because he had an air conditioned car to take us in, a Cadillac,...