Cole v. State, 53920
| Decision Date | 13 May 1977 |
| Docket Number | No. 53920,No. 3,53920,3 |
| Citation | 142 Ga.App. 461,236 S.E.2d 125 |
| Court | Georgia Court of Appeals |
| Parties | Larry COLE et al. v. The STATE |
Syllabus by the Court
The appellants in this case appeal from their conviction for violation of the Controlled Substances Act.
Hudson & Montgomery, David R. Montgomery, Athens, for appellants.
Harry N. Gordon, Dist. Atty., B. Thomas Cook, Jr., Asst. Dist. Atty., Athens, for appellee.
1. The appellants were indicted for selling "a quantity of hydromorphone." A chemist employed by the State Crime Lab testified that the samples he received tested positive for the presence of hydromorphone. He further testified that the pills in evidence were also known by the proprietary name of Dilaudid; he did not test the substance to determine if it was hydromorphone in its pure state but it was his belief the pills were "some sort of salt" of hydromorphone, probably hydromorphone hydrochloride, consisting of hydromorphone (the "base") and chlorine. A defense witness identified the substance as Dilaudid, "a trademark name for hydromorphone," though he also testified the pills were hydromorphone hydrochloride, a salt of the free agent hydromorphone manufactured for use in dosage form and having greater water solubility. Reliance is placed in Williamson v. State, 134 Ga.App. 864, 216 S.E.2d 684 by the appellants in urging a reversal of their convictions. They argue that here, as there, a sale of the base was alleged but the salt was proved and that there exists a fatal variance between the allegata and probata.
In De Palma v. State, 225 Ga. 465, 169 S.E.2d 801 it was established that the courts of this state in determining whether or not a variance is fatal will look to see if the accused has been definitely informed as to the charges against him, so that he may be able to present his defense and not be taken by surprise by the evidence offered at trial and if he is protected against another prosecution for the same offense. In light of this test it has recently been held that the fatal variance rule has been applied too restrictively in Georgia. Dobbs v. State, 235 Ga. 800, 802, 221 S.E.2d 576. Williamson is a decision upon which doubt has been cast by the trend away from the overly-technical application of the fatal variance rule. Caldwell v. State, 139 Ga.App. 279, 282, 291, 228 S.E.2d 219.
The indictments here charged the appellants with the unlawful sale of a "quantity of hydromorphone" in violation of the Georgia Controlled Substances Act. Apparently the appellants are willing to concede that the sale of some substance took place; what they contest is that the state has proven that substance to be what has been alleged "a quantity of hydromorphone." All witnesses agree that the substance contains hydromorphone, whether or not in its free state or as the base of a salt thereof. Dilaudid, a proprietary name for the drugs, has been identified as hydromorphone hydrochloride, a dosage drug, differing from pure hydromorphone therefore in its greater water solubility. Code Ann. § 79A-807(b)(1)(xi) defines hydromorphone or a salt thereof as a "controlled substance." ...
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Murray v. State
...surprise by the evidence offered at trial and if he is protected against another prosecution for the same offense." Cole v. State, 142 Ga.App. 461, 462, 236 S.E.2d 125 (1977). Our review of the entire record in this case leads us to conclude that the indictment in question did not misinform......
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Mann v. State, 66320
...to defend nor did it surprise him at trial. See generally Maxey v. State, 159 Ga.App. 503(1), 284 S.E.2d 23 (1981); Cole v. State, 142 Ga.App. 461, 463, 236 S.E.2d 125 (1977). Thus, we find the trial court correct in denying appellant's motion for directed verdict and his motion for new 2. ......
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...embarrass the defendant in the preparation of his defense, nor can he be subjected to a subsequent prosecution. Cf. Cole v. State, 142 Ga.App. 461, 236 S.E.2d 125 (1977); United States v. Dolan, 544 F.2d 1219 (4th Cir. 1976). Jiminez v. State, 231 So.2d 26 (Fla. 3rd DCA 1970), is distinguis......
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Reynolds v. State
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