Lee v. State

• Decision Date: 06 September 1977
• Docket Number: No. 32421,32421
• Citation: 238 S.E.2d 852,239 Ga. 769
• Parties: Samuel R. LEE v. The STATE.
• Court: Georgia Supreme Court

Page 852

238 S.E.2d 852

239 Ga. 769

Samuel R. LEE v. The STATE.

No. 32421.

Supreme Court of Georgia.

Sept. 6, 1977.

Rehearing Denied Sept. 28, 1977.

James W. Smith, Athens, for appellant.

Harry N. Gordon, Dist. Atty., B. Thomas Cook, Jr., Asst. Dist. Atty., Athens, for appellee.

BOWLES, Justice.

Appellant was indicted and convicted of the offense of theft by retaining stolen property. Upon his motion for new trial being overruled, he appealed to this court. The general grounds are not assigned as error. Appellant does, however, enumerate and insist upon seven other errors which he contends were committed by the lower court.

1. Appellant attacked the indictment with a written pleading which he designated "Demurrer and Special Plea in Abatement and Motion to Quash" contending among other things that the statute under which he was indicted was unconstitutionally enacted by the General Assembly, in that the indictment was apparently predicated on 1968 Georgia Laws 1249, 1292 (Code Ann. § 26-1806), which contained matter different from what is expressed in the title of the Act, in violation of the Georgia Constitution, Article III, Section VII, P VIII (1945) (Code Ann. § 2-1908). Thus, appellant attacks the relatively new Criminal Code of Georgia and specifically Section 26-1806 of that Act.

The heading or preamble of that Act contains in part the following language:

"An Act to revise, classify, consolidate, and supersede the present laws relating to crimes and the punishment therefor and to establish new laws relating thereto; to define that which constitutes each crime . . . ; to provide a new Criminal Code composed as follows; . . . Chapter 26-18, Theft . . . The crime of theft by receiving stolen property, . . . to repeal conflicting laws; and for other purposes."

The body of the Act includes:

"Section 1. The following shall constitute the Criminal Code of Georgia: . . .

§ 26-1806. Theft by receiving stolen property.

(a) A person commits theft by receiving stolen property when he receives, disposes of, or retains stolen property which he knows or should know was stolen unless the property is received, disposed of or retained with intent to restore it to the owner. 'Receiving' means acquiring possession or control or lending on the security of the property."

The question presented, then, is whether or not the quoted section 26-1806 contains matter different from what is expressed in the quoted provisions of the title or preamble of this Act. We conclude that it does not, and that the statute is constitutional in this respect.

In doing so, it is noted the title states its purpose is, inter alia, to define the crime of theft. To hold the statute unconstitutional would require us to find that theft by retaining stolen property does not substantially correspond to the crime of theft, and that it neither relates to nor has a natural connection with the crime of theft, is not a general element thereof, and is not germane to the definition of theft. See, Macon & Birmingham Railroad Company v. Gibson, 85 Ga. 1, 20, 11 S.E. 442 (1890); Cady v. Jardine, 185 Ga. 9, 193 S.E. 869 (1937); Williamson v. Housing Authority of Augusta, 186 Ga. 673, 679, 199 S.E. 43 (1938); Fields v. Arnall, 199 Ga. 491, 495, 34 S.E.2d 692 (1945); Carter v. Burson, 230 Ga. 511, 519, 198 S.E.2d 151 (1973).

Theft contains many elements. Retaining stolen property is merely one of these elements. In our opinion, it has a natural connection with the general subject matter and is proper and germane to the overall definition of theft or theft by receiving stolen property. It was never intended by the framers of our Constitution that the substance of the entire Act should be set forth in the title. If this were true the title would have to include each detail of the entire Act. In these circumstances it is only necessary that the subject matter in the body of the Act relate to what is expressed in the title and have a natural connection to the main object of the legislation and not in conflict therewith, so as not to be deceiving upon a casual reading of only the heading of the Act. All of the tests are met in this instance.

The cases relied on by the appellant are distinguishable. See: McDuffie v. State, 87 Ga. 687, 13 S.E. 596 (1891); Crabb v. State, 88 Ga. 584, 15 S.E. 455 (1891); Smith v. State, 161 Ga. 103, 129 S.E. 766 (1925); Carsello v. State, 220 Ga. 90, 137 S.E.2d 305 (1964). For instance, Carsello, supra, attacked Georgia Laws 1959, Section 18, pages 34, 35, as being in violation of the referred-to constitutional provision. There the title of the Act prohibited the offering or acceptance of anything of value to influence "members " of the Executive Branch of government, the Legislative Branch of government or the Judicial Branch of government. Whereas, in the body of that Act the prohibition was not restricted to members of those branches of government but sought to include every officer, employee, or person acting for or on behalf of the State of Georgia or any agency thereof. The divided court concluded that the word "members" could not be construed to have such a broad or all-inclusive meaning.

2. The second enumeration of error complains that the trial court committed error in allowing appellant's inculpatory statement to be presented into evidence at trial, he claiming that the statement was made involuntarily, and in violation of the holding in Miranda v. Arizona, 384 U.S. 486, 86 S.Ct. 1602, 16 L.Ed.2d 694.

Prior to actual trial, the court conducted a full scale Jackson v. Denno hearing in which appellant, his co-defendant, and counsel for each participated. Following that hearing, the trial judge concluded that the State had carried the burden of proving that the statements attributed to appellant were freely and voluntarily made and that the Miranda requirements were complied with; thus the statements were admissible.

Immediately upon being arrested in the early afternoon of May 3, 1976, defendant was advised of his full Miranda rights which were read to him from a card carried by one of the arresting officers. He stated that he understood those rights. He was then taken to a detective's trailer which was used as a police office where a second officer again advised him of these same rights, in somewhat similar manner. He again stated he understood those rights, signing a written statement to that effect. No threat, force, or promise was made to defendant to get him to sign the waiver or to make any statement. He first made an exculpatory statement in writing. After that statement was made requested an attorney and upon being asked if he had an attorney he replied that he did not. Thereupon, the police officer furnished to him the Athens telephone directory, and pointed out the yellow pages under the heading of "Attorneys." The officer also advised him that he would notify an attorney for him but defendant never did ask for any specific attorney, although he looked up one or more numbers. Several hours then passed and he did not mention wanting a lawyer again. At 9:05 P.M. he was again advised of his Miranda rights in writing, and he signed a written form, introduced in evidence, acknowledging the same and a waiver which said in part as follows:

"The above rights have been read (to) (by) me. I understand what my rights are. I am willing to answer questions and make a statement. I do not want a lawyer at this time. I understand and know what I am doing. No promises or threats have been made to me and no pressure of any kind has been used against me."

After signing the above, he wrote out and signed an incriminating statement, admitting that he stole the vehicle found in his possession, giving details of the theft and how it was accomplished.

Thus defendant, without question, was advised of his rights on three separate occasions, and on two of these occasions he acknowledged receipt of the same and admitted he understood his rights by signing written documents. He contends now, that when he mentioned to the police officer that he wanted a lawyer he could not be interrogated further unless the lawyer was present.

Under the rules laid down in Miranda v. Arizona, supra, if police propose to interrogate an individual they must make known to him that he is entitled to a lawyer and if he cannot afford one, a lawyer will be provided for him prior to any interrogation. If authorities conclude that they will not provide counsel during a reasonable period of time in which investigation in the field is carried out, they may refrain from doing so without violating the individual's Fifth Amendment privileges so long as they do not question him during that time. If the interrogation continues without the presence of an attorney and a statement is taken, a heavy burden rests on the government to demonstrate that the defendant knowingly and intelligently waived his privilege against self-incrimination and his right to retained or appointed counsel. Escobedo v. Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977.

In upholding the voluntariness of an incriminating statement or confession, the totality of the circumstances may be considered even though made in the absence of counsel. Pierce v. State, 235 Ga. 237, 219 S.E.2d 158 (1975).

Under the circumstances of this case we conclude that the government carried the burden placed on it, and the trial court's decision based on the evidence presented is not erroneous.

3. Enumeration 3 claims that the trial court committed error in denying appellant's motion to suppress evidence illegally obtained through an invalid search warrant, supported by an affidavit, the integrity of which was destroyed by material and intentional misrepresentations of fact.

Appellant relies principally upon the case of United States v. Thomas, 489 F.2d 664 (5th Cir. 1973) in which that court held in part:

"Affidavits containing misrepresentations are invalid if the error (1) was committed with an...