Jackson v. State

• Decision Date: 01 November 1976
• Docket Number: No. 2,No. 52794,52794,2
• Citation: 231 S.E.2d 805,140 Ga.App. 288
• Parties: Stokey JACKSON v. The STATE
• Court: Georgia Court of Appeals

Page 805

231 S.E.2d 805

140 Ga.App. 288

Stokey JACKSON v. The STATE.

No. 52794.

Court of Appeals of Georgia, Division No. 2.

Nov. 1, 1976.

Harry F. Thompson, Macon, for appellant.

Fred M. Hasty, Dist. Atty., Walker P. Johnson, Jr., Asst. Dist. Atty., Macon, for appellee.

McMURRAY, Judge.

On September 12, 1974, defendant was indicted on four counts of violating Code § 27-503 (professional bondsmen suggesting the employment of an attorney to represent the applicant during the negotiations for the bond-a misdemeanor). On motion to quash the indictment because there were no names of female citizens in the grand jury box from which the grand jury was drawn which returned the indictment, the motion was sustained, and the indictment, the motion by order dated March 11, 1976. Within six months of that date, and on March 15, 1976, an accusation was filed incorporating the basic charges found in the special presentment which had been previously quashed.

A motion for severance was granted and the defendant was tried on March 17 and 18, 1976, and only convicted as to Count 1. He was sentenced to serve 12 months and pay a $1,000.00 fine. It was stipulated that the defendant was a professional bondsman. Motion for new trial was filed, amended, and denied. Defendant appeals. Held:

1. The offense for which the defendant was tried allegedly occurred on March 18, 1974, according to the special presentment of the grand jury returned September 12, 1974. There was some evidence that it occurred no later than February 4 or 5, 1974. The indictment was quashed March 11, 1976, and the accusation was filed on March 15, 1976. Defendant contends that the accusation was barred within two years after the commission of the offense in accordance with Code § 27-601(4), citing Love v. State, 70 Ga.App. 40, 41, 27 S.E.2d 337, and the State would be limited to evidence in proving the offense to have occurred within a two year period prior to March 15, 1976, that is, no earlier than March 15, 1974, whereas evidence shows it could not have occurred later than February 4 and 5, 1974. The accusation does not show on its face it was barred by the two year statute. If an indictment is found within the time limited and if for any informality shall be quashed, a new indictment or accusation may be found and prosecuted within six months from the time the first is quashed. No indictment was necessary as this was a misdemeanor charge. The offense was not barred by the statute of limitation under Code § 27-601, as the six months limitation after the indictment was first quashed applies also to accusations. Crawford v. State, 4 Ga.App. 789(5), 62 S.E. 501; Hodges v. State, 98 Ga.App 97, 107, 104 S.E.2d 704. The first presentment arrested the running of the statute. Brock v. State, 22 Ga. 98(1); Alewine v. State, 103 Ga.App. 120, 118 S.E.2d 499.

2. The court did not err in refusing to strike certain testimony of witnesses relating to a conversation on the telephone with a person who told the witness it was the defendant. This testimony was not hearsay or self-serving, but a circumstance that the witness may have talked to the defendant on the occasion in question.

3. The State was entitled to a thorough and sifting cross-examination of the defendant's witness concerning other named persons who had come to the office of the defendant, a bondsman, and that they were likewise represented by the attorney in question. This testimony was material to the issue at hand to show a course of dealing between the defendant and the attorney as to prospective clients meeting at the defendant's office. Other questions asked of her in regard to her child and the support for same were authorized inasmuch as the State was entitled to a thorough and sifting cross-examination as to bias and prejudice.

4. The court did not err in denying the motion for mistrial made when the attorney was called as a witness, and the district attorney suggested to the court that even though the witness was a lawyer that an...