Gee v. State

• Decision Date: 06 November 1969
• Docket Number: No. 25366,25366
• Citation: 225 Ga. 669,171 S.E.2d 291
• Parties: George GEE v. The STATE.
• Court: Georgia Supreme Court

Page 291

171 S.E.2d 291

225 Ga. 669

George GEE v. The STATE.

No. 25366.

Supreme Court of Georgia.

Nov. 6, 1969.

Syllabus by the Court

1. The first incident complained of is not likely to occur on another trial, making it unnecessary to pass on the alleged error.

2. The appellant's contention that the Georgia Drug Abuse Control Act (Ga.L. 1967, pp. 296-380) contains matters not expressed in the title is without merit.

3. The court properly tried the offenses charged as felonies.

4. The court properly sustained the State's objection to certain questions on cross examination of a witness for the State, on the ground that the warrants were the highest and best evidence.

5. The possession of drugs in violation of the Georgia Drug Abuse Control Act, and the selling of the same drugs, are in law separate and distinct crimes and each is punishable.

6. The evidence was sufficient to prove the second count of the indictment.

7. The conflicting provisions of the statute, making its violation a felony, and at the same time providing that a fine may be imposed, must be construed liberally in favor of the accused, and the court erred in failing to charge that the jury could impose a fine rather than a penitentiary sentence if they saw fit.

Greer, Sartain & Carey, Jack M. Carey, Gainesville, for appellant.

Jeff C. Wayne, Dist. Atty., Gainesville, for appellee.

MOBLEY, Presiding Justice.

The appellant was indicted, tried, and convicted on two counts alleging violation of the Georgia Drug Abuse Control Act (Ga.L.1967, pp. 296, 343; Code Ann. Chapter 79A-9), the first count alleging that he did sell and deliver to a named person, amphetamine, a stimulant drug, on November 21, 1968; and the second count alleging that on the same date he possessed the same drug. The jury fixed his sentence at five years on the first count, and one year on the second. He was sentenced to serve the two terms consecutively.

His motion for new trial on the general and seven special grounds was denied, from which judgment he appealed, enumerating as error the denial of his motion for new trial on all grounds.

1. The first enumeration of error is that the court erred in refusing to disqualify two panels of jurors, which were put upon this appellant, because the trial judge on a plea of another person to several violations of the same law which the appellant was charged with violating, fixed a sentence of eight years, all in the presence of these jurors. This incident is not likely to happen on another trial and it is unnecessary to pass on this ground, since a new trial is required on another ground.

2. Error 2 alleges that Georgia Laws 1967, pp. 296-380, and especially Code Ann. Chapter 79A-9, violates the Constitution of Georgia because the body of the Act contains matters not expressed in the title. The contention is that the caption does not provide for the defining of a depressant or stimultant drug, nor any method of determining what shall constitute a depressant or stimulant drug.

The caption of the Act includes the following pertinent language: 'to state the purposes of this enactment; to define the terms used in this Act; * * * to regulate the sale of dangerous drugs and to define dangerous drugs * * *.' The provision, 'to define the terms used in this Act,' includes a definition of 'depressant and stimulant drugs.' The caption of the Act neet only indicate the general object and subject to be dealt with therein and be broad enough to protect the people against covert or surprise legislation. Cady v. Jardine, 185 Ga. 9, 193 S.E. 869; Bray v. City of East Point, 203 Ga. 315, 317, 46 S.E.2d 257; State of Georgia v. Resolute Ins. Co., 221 Ga. 815(2), 147 S.E.2d 433. This ground is without merit.

3. Error 3 alleges that the court erred in trying these cases against the appellant as felonies when under Ga.L.1967, pp. 296-380 (Code Ann. §§ 79A-901 to 79A-904) they are only misdemeanors.

Code Ann. § 79A-903(b) defines a depressant or stimulant drug as: '* * * 2. Any drug which contains any quantity of (A) amphetamine * * *; (B) any salt of amphetamine * * *' Section 78A-9915 provides: '(a) Any person who shall violate any of the provisions of Chapter 79A-9 relating to depressant and stimulant drugs and counterfeit drugs or the rules and regulations promulgated thereunder shall be guilty of a felony, * * *.' This section plainly and specifically makes the offenses charged in this indictment felonies. Code § 79A-702(a) does not, as contended by the appellant, require a different conclusion.

4. Error 4 complains that the court refused to permit counsel for the appellant to cross examine a witness as to his

knowledge as to certain warrants that were taken against the appellant during the investigation.

During the cross examination of G.B.I. Agent Johnson the court permitted counsel for the appellant to ask the witness if he took out a warrant against the appellant, to which he answered that he did not remember. Counsel then asked him 'Well, I show you a criminal warrant against George Gee for possessing dangerous drugs, dated November 21-the date of the alleged possession-and ask you whether or not you took that warrant or R. M. Clark?' The court sustained the objection to this question on the ground that the warrant was the highest and best evidence.

The warrant would show who took it out, and it was the highest and best evidence of whether the witness took it out. Sherman v. State, 2 Ga.App. 148, 150, 58 S.E. 393; Cain v. State, 113 Ga.App. 477(2), 148 S.E.2d 508. The court did not err in sustaining the objection to the question.

Counsel for the appellant followed the above question with the question: 'In reference to this investigation, I'll ask you whether or not you ever took a search warrant in reference to George Gee or George Gee's place?' The witness answered, 'There was a search warrant taken for the station, yes, sir.' Question: 'And it was because of this alleged buy that you made on November 21, was it not?' The objection to the question, on the ground that the warrant was the highest and best evidence, was sustained by the court. Counsel for the appellant stated that he sought to impeach this witness because the search warrant stated that he bought seven pills, whereas this witness had testified that he bought five pills. Counsel stated that he did not wish to introduce the search warrant in evidence.

The search warrant would be the highest and best evidence of whether it was obtained on the basis of the purchase of November 21, and the judge did not err in sustaining this objection to the question.

5. Error 5 alleges that the court erred in failing to require the State to elect upon which count of the indictment it would proceed, in holding that the transaction constituted two separate crimes, and in imposing two separate sentences after conviction. It is contended that the count charging possession of the drugs was merged in the count charging sale of the drugs, since the counts involved the possession and selling of the identical drugs, and constituted in law and fact only one offense.

The question made by this assignment of error requires the application of the constitutional prohibition against double jeopardy for the same offense, and involves the same question of identity of offenses which is involved in cases pertaining to former jeopardy.

In 22 C.J.S. Criminal Law § 278(1), p. 713, it is stated that there is great diversity of judicial decision on the question of former jeopardy, and that the courts are 'in hopeless, or endless, conflict when it comes to a solution of the problem of identity of offenses, although they ordinarily agree as to the general principles, the difficulty, or lack of harmony, being in applying them to the facts; * * *.'

This court in Harris v. State, 193 Ga. 109, 114, 17 S.E.2d 573, 147 A.L.R. 980, pointed out that confusion exists in the decisions of this court with reference to the test for determining former jeopardy. In the Harris case this court defined the 'same evidence' test and the 'same transaction' test, and concluded that this court applied the same transaction test, although applying elements pertaining to the same evidence rule. The court held that 'in order for the transaction to be the same, it must be identical both as a matter of fact and as a matter of law.' It was further stated that: 'Under the general principle of the same-transaction test, the plea is ineffective if the offenses charged in the two indictments, though relating to the identical transaction, are legally separate and distinct. The courts of this State and the textwriters have recognized that a single act may constitute two or more distinct and separate offenses.' These rulings in the Harris case were quoted with approval in Dutton v. Smart, 222 Ga. 35, 148 S.E.2d 396.

The offenses charged in the separate counts of the indictment in the present case are made separate and distinct offenses under the Georgia Drug Abuse Control Act. They are prohibited by § 79A-904 (Ga.L.1967, pp. 296, 346), subsection (b) prohibiting the sale of a depressant or stimulant drug in violation of § 79A-907(b); and subsection (c) prohibiting the possession of such drug in violation of § 79A-907(c). The sale of a depressant or stimulant drug is prohibited except by a person in one of certain stated occupations, acting in an authorized manner. The possession of a depressant or stimulant drug is prohibited unless the person is engaged in one of the stated occupations listed in connection with the prohibition against selling, and unless the drug was obtained upon a valid prescription and held in the original container in which it was delivered, or such drug was delivered by a practitioner in the course of his professional practice and the drug is held in the container in which it was...