Lord v. State

• Decision Date: 30 September 1975
• Docket Number: No. 30199,30199
• Citation: 219 S.E.2d 425,235 Ga. 342
• Parties: John Hardy LORD v. The STATE.
• Court: Georgia Supreme Court

Page 425

219 S.E.2d 425

235 Ga. 342

John Hardy LORD v. The STATE.

No. 30199.

Supreme Court of Georgia.

Sept. 30, 1975.

Rehearing Denied Oct. 16, 1975.

A. Glen Steedley, Jr., Atlanta, for appellant.

Lewis R. Slaton, Dist. Atty., Carole E. Wall, Asst. Dist. Atty., Arthur K. Bolton, Atty. Gen., Atlanta, for appellee.

NICHOLS, Chief Justice.

John Hardy Lord was indicted for the offense of 'Violation Georgia Controlled Substances Act for that said accused, in the County of Fulton and State of Georgia, on the 1st day of October, 1974 not being authorized under any provision of the Georgia Controlled Substances Act to do so, did unlawfully possess and have under his control more than one ounce of Marijuana; contrary to the laws of said State, the good order, peace and dignity thereof.' A demurrer to such indictment was overruled in which it was alleged that the Act under which the defendant was indicted was unconstitutional, as were special demurrers which contended, among other things, that the indictment did not adequately inform the defendant of the nature and cause of the accusation against him. On the trial of the case the defendant was found guilty and sentenced to six years imprisonment. A motion for new trial was overruled and the present appeal filed.

1. The first enumeration of error complains of an excerpt of the court's charge dealing with entrapment. The excerpt of the charge complained of was taken from the decision of the Court of Appeals in Reed v. State, 130 Ga.App. 659, 661, 204 S.E.2d 335, 337 (1974) which held: 'The defendant who interposes an entrapment defense may not controvert the allegations of the indictment. (cits.) In order to raise the question of his predisposition to commit the crime, therefore, the defendant does not take issue with the State's assertion that he did commit the alleged act(s).' It is contended that such charge was error because in the present case, the defendant did not testify, wherein in Reed, and other cases the defendant did testify on the trial. Such contention is without merit. A defense may be raised through testimony presented by the defendant whether or not he himself takes the stand. In the present case the defense of entrapment was relied upon and it is immaterial that such testimony was adduced from witnesses presented by the defendant and not by his own testimony. See also State v. McNeill, 234 Ga. 696, 217 S.E.2d 281 (1975).

2. The second enumeration of error complains that the trial court erred in failing to charge that the burden of proof on the question of entrapment was on the State. The jury was properly instructed on the burden of proof generally, and it was not error to fail to charge that the burden was on the State on the question of entrapment. See State v. McNeill, supra.

3. The third enumeration of error complains that the trial court erred in overruling the defendant's special demurrer to the indictment. The material parts of the indictment in the present case charge and accuse John Hardy Lord with the offense of 'Violation Georgia Controlled Substances Act for that said accused . . . not being authorized under any provision of the Georgia Controlled Substances Act to do so, did unlawfully possess and have under his control more than one ounce of Marijuana; contrary to the laws of said State . . .' This indictment which followed substantially the language of Code § 79A-811(j) was sufficient to withstand the defendant's special demurrer. Cases relied upon by the defendant relate to crimes where the statute prohibits certain conduct in generic terms without any specificity and have no relation to the present case. The language in the indictment charged the defendant with the possession of marijuana on October 1, 1974. It could not have been more specific. This enumeration of error is without merit.

4. The fourth enumeration of error complains that the trial court did not instruct the jury fully on the law of intent. Where, as in the present case, the jury was instructed 'intent is an essential ingredient of the offense charged against this defendant in the above statute,' this enumeration of error is without merit.

5. The fifth enumeration of error complains that the trial court erred in refusing to charge the provisions of the Act of 1970 (Ga.L.1970, pp. 447, 448; Code Ann. § 27-101.2) relating to rewards in accordance with a timely written request. In support of such contention, the defendant relies upon the decision of the Court of Appeals in Wells v. State, 126 Ga.App. 130, 133, 190 S.E.2d 106 (1972). This statute deals with rewards payable to persons other than law enforecement officers who furnish information leading to the arrest and conviction of a person who is charged with selling dangerous drugs.

Pretermitting the question of whether marijuana would fall within any definition of 'dangerous drugs' as set forth in such statute, yet where as here the defendant was charged merely with possessing and not with selling marijuana, it was not error to refuse to give this requested charge.

6. The sixth enumeration of error complains that the trial court failed to charge the jury in accordance with appellant's request to charge no. 8. This request to charge sought to have the jury informed as to the penalty that two of the State's informers could have received had they not cooperated with the State and furnished information concerning the defendant's alleged violation with respect to possession of marijuana. The requested charge without any explanation would be incomplete and for such reason, if no other, the refusal of the trial court to so instruct the jury shows no reversible error.

7. The seventh enumeration of error contends that the Act of 1974 (Ga.L.1974, pp. 221, 243; Code Ann. § 79A-811(j)) is unconstitutional because: 'The statute is the Georgia Controlled Substances Act and said statute defines a controlled substance as any of five schedules of substances (79A-802(d)), which schedules do not include marijuana. Said statute contains multiple subject matters. The statute thus violates the Georgia Constitution, Art. III, Sec. VII, Par. VIII (Ga.Code § 2-1908) in that it contains more than one subject matter and as to marijuana contains matter different from what is expressed in the title thereof.'

The defendant thus attacks the provisions prohibiting the possession, etc. of marijuana in such Act on two grounds, to wit: (1) The Act contains matter different from what is expressed in the title thereof; and (2) The Act refers to more than one subject matter.

'In determining whether this act refers to more than one subject matter, and therefore violates the above-mentioned provision of the Constitution, we must determine the meaning of the word 'subject matter' as used in the Constitution. It is not synonymous with the word 'provision.' As used in the Constitution, it is to be given a broad and extended meaning so as to allow the legislature authority to include in one Act all matter having a logical or natural connection. To constitute plurality of subject matter, an Act must embrace two or more dissimilar and discordant subjects that by no fair intendment can be considered as having any logical connection with or relation to each other. All that our Constitution requires is that the Act embrance only one general subject; and by this is meant, merely, that all matters treated by the Act should be so connected with or related to each other, either logically or in popular understanding, as to be parts of, or germane to, one subject. This provision of our Constitution was intended to stop the vicious practice of...