Harmon v. State
| Decision Date | 01 October 1975 |
| Docket Number | No. 30237,30237 |
| Citation | 235 Ga. 329,219 S.E.2d 441 |
| Parties | Lee HARMON v. The STATE. |
| Court | Georgia Supreme Court |
William Ralph Hill, Jr., LaFayette, for appellant.
Earl B. Self, Dist. Atty., C. P. Brackett, Jr., Asst. Dist. Atty., Summerville, for appellee.
Arthur K. Bolton, Atty. Gen., G. Thomas Davis, Senior Asst. Atty. Gen., Atlanta, amicus curiae.
The appellant, Lee Harmon, was indicted for the illegal sale of ethchlorvynol, a controlled substance under the Georgia Controlled Substances Act. Appellant filed a demurrer on the grounds that the indictment charged him with a nonexistent offense, that it charged him with two separate offenses in one count and that it was too vague and indefinite; and on the ground that the Georgia Controlled Substances Act was unconstitutional. The trial court overruled appellant's demurrer and certified such judgment for immediate review.
1. The offense was sufficiently described in the special presentment with particularity to distinguish it from other offenses under the Act, and was sufficient to put appellant on notice of the alleged offense, even though the drug was described as 'ethclorvynol' rather than 'ethchlorvynol', the proper spelling. See Allen v. State, 120 Ga.App. 533, 171 S.E.2d 380.
2. Appellant next contends that the special presentment is faulty because of duplicity, in that the language 'unlawfully possess and sell' in the one count indictment charges him with two separate crimes under the Controlled Substances Act. In support of his contention, appellant cites State v. Extevez, 232 Ga. 316, 206 S.E.2d 475 arguing that in that case we held illegal possession and sale of a controlled substance to be separate and distinct crimes as a matter of law. While this is true, the opinion, in interpreting Code Ann. §§ 26-505 and 26-506, said that these sections established alternative rules for determining when one crime is included in another as a matter of fact or as a matter of law. The opinion went on to hold that since the evidence in that case required convict of illegal sale was the only evidence showing possession, the illegal possession was included in the crime of illegal sale as a matter of fact under Code Ann. § 26-505(a).
The same rule applies to the case sub judice since the state concedes in its brief that selling was the sole offense intended. Therefore the evidence needed to convict appellant of illegal possession is also needed to convict him of illegal sale. Under such circumstances the indictment charged appellant only with the single offense of illegal sale of a controlled substance since it is the greater offense and is not so vague, uncertain and indefinite that appellant could neither prepare a defense nor plead former jeopardy as he contends.
We also said in Estevez, supra, that
3. Appellant enumerates as error the trial court's overruling his motion to declare Code Ann. §§ 79A-803(a), 79A-805(a), 79A-809(c) of the Georgia Controlled Substances Act unconstitutional as violative of Art. I, Sec. I, Par. 23 (Code Ann. § 2-123) (separation of powers) ...
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...a sale necessarily includes a delivery of goods for a price and the sale is complete upon delivery. See generally Harmon v. State, 235 Ga. 329(2), 219 S.E.2d 441 (1975). Case No. 2. Appellant Strickland asserts ten enumerations of error on his appeal. In his first and second enumerations of......
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...amitriptylene as a dangerous drug in the 1980 act, no unconstitutional delegation or vagueness is involved here. Harmon v. State, 235 Ga. 329(3), 219 S.E.2d 441 (1975). Defendant also argues that the Controlled Substances Act is an unconstitutional delegation of legislative authority. Defen......
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...his own stash of cocaine, all of the elements of the crime of sale of a controlled substance, have been satisfied. Harmon v. State, 235 Ga. 329, 219 S.E.2d 441 (1975); Sullivan v. State, 178 Ga.App. 769, 344 S.E.2d 737 (1986). Possession of the cocaine sold is a lesser included offense of s......
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...the standards for determining if one offense is included in another as a matter of fact or as a matter of law. Harmon v. State, 235 Ga. 329, 330(2) (219 SE2d 441) (1975). They are alternative and not conjunctive. State v. Estevez, 232 Ga. 316, 319(1), (206 SE2d 475) (1974). Paragraph (1) of......