Holloman v. State

• Decision Date: 18 September 1974
• Docket Number: No. 1,No. 49410,49410,1
• Parties: J. C. HOLLOMAN et al. v. The STATE
• Court: Georgia Court of Appeals

Page 312

211 S.E.2d 312

133 Ga.App. 275

J. C. HOLLOMAN et al. v. The STATE.

No. 49410.

Court of Appeals of Georgia, Division No. 1.

Sept. 18, 1974.

Rehearing Denied Nov. 8, 1974.

Byrd, Groover & Buford, Denmark Groover, Jr., Macon, Frank D. Farrar, Jr., Gray, for appellants.

Joseph H. Briley, Dist. Atty., Gray, for appellee.

Syllabus Opinion by the Court

CLARK, Judge.

This appeal is by three defendants who were convicted of the misdemeanor of malpractice in office while serving as County Commissioners of Jones County from January 1, 1969, through December 31, 1972. The specific offense was the making of a contract for renovation of the county courthouse building on a cost plus basis without awarding such contract to the lowest bidder at public outcry and without advertisement and without making the contractor comply with certain statutory requirements imposed upon contracts made with public boards.

We quote the pertinent provisions of the special presentment entered as a true bill by the grand jury on September 29, 1973, wherein these defendants were charged 'with the offense of Malpractice in Office (89-9907) for that the said J. C. Holloman, Corbin C. Roberts, and James C. Balkcom, as members of the County Commissioners of Jones County, Georgia, on 4th day of March, in the year of our Lord Nineteen Hundred and Sixty-nine, in the County aforesaid, did then and there, unlawfully and in the administration and under the color of their individual offices did emply Charles Washburn of Etheridge Bros. Construction Co., Inc. on a basis of cost plus 10% overhead plus 10% profit, to repair, renovate and remodel the Jones County, Georgia Courthouse Building, said accused Commissioners so acting without awarding the contract for said repair, renovation and remodeling to the lowest bidder, at public outcry, before the said Jones County, Georgia Courthouse as provided in § 23-1702 of the Code of Georgia Annotated and its Supplements and without having advertised the letting of said contract of repair, renovation and remodelling as provided by § 23-1703 of the Code of Georgia Annotated and its Supplements and without requiring compliance by the said Contractor thus employed by said accused Commissioners with the provisions of §§ 23-1704, 23-1705 and 23-1706 of the Code of Georgia Annotated and its Supplements and said accused Commissioners did by their action on March 4, 1969, thereby prevent competition in bidding for said public work as prohibited and provided for in § 23-1710 of the Code of Georgia Annotated and its Supplements and that said actions by said accused Commissioners was (sic) against the public interest, was not justified, required or warranted by the economy of the times and was as a result thereof costly, extravagant and unnecessarily wasteful, and of said conduct on the part of said accused Commissioners being unknown to the Prosecutor until July 1973, contrary to the laws of said State, the good order, peace and dignity thereof.' (R. 3).

The three defendants filed a plea in bar, a plea of the statute of limitation, and a general demurrer, all of which were separately overruled. The trial resulted in a verdict of guilty and the court imposed separate sentences upon each of the defendants. Thereafter a motion for new trial was filed which was later amended. This amended new trial motion was overruled from which judgment the instant appeal was taken.

1. Having concluded that the offense was barred by the statute of limitation, we limit our opinion to that phase.

2. As the crime of malpractice in office is a misdemeanor, the applicable period is two years. Code §§ 27-601, 26-502. If, as contended by appellants, the indictment charges the offense to have been the making of a contract on March 4, 1969, then the two year period would have expired before the special presentment dated September 29, 1973. The state argues that this statutory bar cannot here be applied for two reasons: (1) the crime was a continuing offense, the contention being that 'as long as works, payment or other action was taken by the commissioners under this unlawful arrangement, then the offense continued;' (Brief, p. 8) and (2) there was a tolling period which is specifically covered by the indictment stating that 'all of said conduct on the part of said accused Commissioners being unknown to the Prosecutor until July 1973.' (R. 3). We are unable to accept either contention.

3. A reading of the indictment shows that the crime with which the defendants were charged occurred on March 4, 1969, when the individual contractor was employed to do the work on a cost plus basis. Such employment constituted the agreement which was alleged to have been made in violation of the statute. Thus, the indictment spells out the offense in words taken from the original statute to be found at pp. 159, 160, of the Ga.L. 1878-1879. This language now appears in Code § 23-1702 and reads: 'Whenever it becomes necessary to build or repair any courthouse, jail, bridge, causeway, or other public works in any county, the officer having charge of the roads and revenues and public buildings of such county shall cause the same to be built or repaired by letting out the contract therefor to the lowest bidder, at public outcry, before the courthouse door, after having advertised the letting of said contracts . . .' (Emphasis supplied.) We have underlined the word 'contract' because it is the key word in the statute as well as in the indictment drafted to satisfy the statute.

In short, it was the cost plus contract which the defendants were charged to have made in violation of the statute. No where in the statute is there any reference to 'works, payment or other action' and therefore nothing to this effect was included in the indictment. The gravamen of the crime was making the cost-plus contract of March 4, 1969, without compliance with the statutory requirements and not the work that was done thereunder nor the payments made during the contractor's performance of his employment agreement. Our view is fortified by the remainder of the indictment since Code Ann. §§ 23-1704, 23-1705 and 23-1706 deal with bond requirements on contracts made with public boards and public bodies.

4. Was the limitation statute tolled between March 4, 1969, the date of the making of the illegal employment contract, and July 1973, that being the first time that the district attorney learned of the illegal transaction? The indictment seeks to exclude such possibility by using the language that 'all of said conduct on the part of said accused commissioners being known to the prosecutor until July 1973.' (R. 3).

Our statute provides the limitation does not 'run so long as the offender or offense is unknown.' Code § 27-601. See also Code Ann. § 26-503 which excludes that period in which 'The person committing the crime or crimes is unknown.'

The transcript discloses the work under the contract was begun in 1969 and continued until late 1971 and perhaps into 1972. Since the work was being done at the courthouse the fact of such...