Loomis v. State, 32046.

• Decision Date: 03 December 1948
• Docket Number: No. 32046.,32046.
• Citation: 51 S.E.2d. 11
• Court: Georgia Court of Appeals
• Parties: LOOMIS. v. STATE.

51 S.E.2d. 11

LOOMIS.

v.STATE.

No. 32046.

Court of Appeals of Georgia, Division No. 2.

Dec. 3, 1948.

[COPYRIGHT MATERIALOMITTED]

[COPYRIGHT MATERIALOMITTED]

Syllabus by the Court.

The case is reversed on the assignments of error presented in grounds four, and thirty and discussed in divisions six and thirty-one of the opinion, infra.

Error from Superior Court, Fulton County; Bond Almand, Judge.

Homer L. Loomis, Jr., was convicted of exercising and attempting to exercise the functions of a police officer without authority and he brings error.

Reversed.

The appeal was transferred from the Supreme Court, 47 S.E.2d 58.

Emory Burke and Homer L. Loomis, Jr., were jointly indicted by the grand jury in five counts for violating the provisions of section 26-4902 of the Code of 1933, which provides in effect that one who shall exercise or attempt to exercise without authority the functions of designated police officers, or other peace officers, shall be guilty of a misdemeanor. The cases were tried separately and we are here concerned with the trial of Homer L. Loomis, Jr., only. Our consideration of the trial of Burke under the same indictment is reported in Burke v. State, 76 Ga.App. 612, 47 S.E.2d 116.

The jury returned a verdict of guilty against Loomis on counts two, four and five and found him not guilty on counts one and three. The defendant filed a motion for a new trial on the general and thirty-six special grounds, numbered one through 15 consecutively, 16, 16-A, 16-B, 16-C, 16-D, and 17 through 33 consecutively. This motion was overruled, and the defendant excepted. Also made a part of the record and assigned as error are the rulings of the court, overruling the defendant's three grounds of demurrer to the indictment and each of its five counts, sustaining the demurrer of the State to the defendant's plea of former jeopardy on each of the five counts, and rulings qualifying and explaining certain grounds of the motion for a new trial, as well as a ruling refusing to allow certain argument of the assistant solicitor to be recorded by the court reporter, exceptions pendente lite having been filed to each of these rulings of the trial court.

We omit counts one and three of the indictment because as to these counts the jury returned a verdict of not guilty. Count five of the indictment alleged, omitting its formal parts, that the defendant in Fulton County, Georgia, on October 18, 1946, with force and arms, did unlawfully, without authority, exercise and attempt to exercise the functions of a peace officer, to wit: the Sheriff of Fulton County, Georgia, and the Deputies Sheriff of said County, in that the accused persons did exercise and attempt to exercise the right and authority to preserve the peace and to act as conservators of the peace in said county by holding themselves out to the public as ready to preserve the peace in said county and to act as conservators of the peace, and to receive complaints of violation of the criminal laws by Negroes in said county; and that the accused persons learning of an alleged assault rumored to have been made by a negro upon a female in said county, at or near the Ira Street School, did go to a building of the City of Atlanta, in said county, formerly used as a public school, and known as the Ira Street School, located on the west side of Ira Street, between Richardson Street and Crumbley Street, in said county, for the purpose of making an investigation on the premises of said building, to learn the identity of the person alleged to have made an assault upon said female, at or near said building, and for the purpose of apprehending and arresting said person making said assault and after going to said building did go through and inspect the same and the premises surrounding said building looking for the alleged perpetrator of said alleged assault, and did interrogate persons found at or near said building, with respect to learning the identity of the alleged assailant, said accused being then armed with deadly weapons.

This count of the indictment further alleged that the accused persons did not have, nor did either of them have, any authority of law to hold themselves out as personsto preserve the peace in said county, or to act as conservators of the.peace therein, or to receive complaints of alleged violations of the criminal laws, nor did either of them have any authority of law to go to said place for said purposes; that the time covered by this indictment was not a time of riot or unusual disturbance, nor was either of the said accused persons authorized to so act by any provision of law, --nor were said accused persons conductors on passenger trains; and that the offense charged in this count alleged a distinct and separate transaction from those set forth in the other counts of the indictment.

Counts two and four of the same indictment, which alleged the participation of the defendant on other days in other transactions in violation of Code, § 26-4902, may be found set forth with particularity in the report of the Burke case, supra.

Homer L. Loomis, of New York City, for plaintiff in error.

Paul Webb, Sol. Gen., and William Hall, both of Atlanta, for defendant in error.

MacINTYRE, Presiding Judge.

1. Demurrer. Ground one of the demurrer to the indictment alleges that the indictment and each of its counts are bad and unsustainable in law in that no one of them charge's the defendant with an act, or an attempt to do an act, which constitutes an offense at common-law or a violation of any statute of Georgia. Ground two contends that the indictment and each of its counts are bad and unsustainable in law in that no one of them charges that the defendant, in doing or, attempting the acts specified therein respectively, was acting or purporting to act as a peace officer of the State of Georgia or any political subdivision thereof.

Georgia recognizes no common-law crimes as such, the Code embracing the entire field of criminal law and procedure; but Code of 1933, § 26-4902, provides: "Any person who shall, without authority, exercise or attempt to exercise the functions of, or hold himself out to anyone as, a deputy sheriff, marshall, policeman, constable, or other peace officer or detective shall be guilty of a misdemeanor: Provided, that nothing in this Chapter shall be construed to interfere with the police powers granted to conductors of passenger trains, nor shall this and the preceding section apply in times of riot or unusual disturbance, or in other instances provided for by law."

Each of the counts of the indictment accused the defendant with exercising, or attempting to exercise, the functions of, or with holding himself out as, one of the police officers designated by the code section or other peace officer within its meaning; and each count alleged that the defendant was not a conductor of a passenger train and that the time covered by the indictment was not a time of riot or unusual disturbance. Grounds one and two of the demurrer are not meritorious. See in this connection Burke v. State, supra.

Ground three of the demurrer contends that the indictment is bad and unsustainable in law in that, while it sets out five counts, each as charging a distinct and separate offense, the matters so charged in the several counts constitute but different phases or aspects of one offense; and contends that all the charges of the indictment should be embraced in one general count, not five separate counts.

With regard to similar misdemeanors covering a period of time within the statute of limitations, which is two years, the prosecution may elect to charge the offender with several particular offenses, alleging each in separate counts with such particularity as to make it unmistakably clear that the occurrence embraced by any one count is a separate and distinct transaction from that alleged in any other count; or it may elect to charge a general offense which would cover in one count the whole period of two years prior to the filing of the accusation. The prosecution here elected to charge a particular congruous offense in each count, and the words in each count, "this offense herein alleged being a distinct and separate transaction from those set forth in other counts of this indictment, " make substantial proof of the facts alleged in each count essentia]to identify the particular offense described in that count as a separate and distinct violation of the law. Martin v. State, 73 Ga.App. 573 (3, 4, 5, 6, 7), 37 S.E.2d 411; Morgan v. State, 119 Ga. 964, 47 S.E. 567. This ground of the demurrer is not meritorious.

2. Plea of Former Jeopardy. The court sustained the oral demurrer of the State to the defendant's plea of former jeopardy to each of the counts of the indictment. The plea to each count alleged in effect that the defendant had already been tried and convicted of riot on evidence including a recital of the same state of facts complained of in each count of the indictment, respectively, the only difference in the offense for which the defendant was sought to be tried the second time from the offense for which he was first tried being that in the latter the facts were recited to charge in the particular count a general plan to enforce the peace, whereas in the former they were given in evidence to establish a conspiracy to break the peace.

The offenses are separate and distinct. A person may in one transaction so conduct himself as to be guilty of both of these crimes. "In such a case the rule in Blair's case, (Blair v. State), 81 Ga. 629, 7 S.E. 855, is to be followed. It is there said that if the evidence required to convict under the first indictment would not be sufficient to convict under the second, without proof of an additional fact which was necessary to constitute the offense, former jeopardy could not be pleaded in bar of the second indictment." Mcintosh v. State, 116 Ga. 543, 544, 42 S.E. 793, 794. See also Harris v. State, 193 Ga. 109 (1), 17 S.E.2d...