Mach v. State, 40544

• Decision Date: 14 February 1964
• Docket Number: No. 40544,No. 2,40544,2
• Citation: 109 Ga.App. 154,135 S.E.2d 467
• Parties: R. O. MACH v. The STATE
• Court: Georgia Court of Appeals

Page 467

135 S.E.2d 467

109 Ga.App. 154

R. O. MACH v. The STATE.

No. 40544.

Court of Appeals of Georgia, Division No. 2.

Feb. 14, 1964.

Syllabus by the Court

1. (a) Assistant prosecuting officers, to the regular prosecuting officer, duly authorized by both the prosecutor and the court to assit the prosecutor in the discharge of his duties, are invested with the same rights and subject to the same restrictions with respect to appearing before the grand jury and participating in the proceedings before that body as the regular prosecuting officer.

(b) Failure of the court to require an attorney to be specially sworn to assist the solicitor general in this prosecution was not reversible error.

(c) The attorney's former employment by the governing body of a municipality within the county, as a special prosecutor to direct and counsel in investigation and prosecution of suspected criminal activities, did not disqualify him as an impartial and unbiased assistant prosecuting officer in the Superior Court of Thomas County, his former employment not having been by a conflicting interest, but by public officials representing the public interest and concerned with enforcement of the criminal law and subserving public justice.

2. Copies of records of a department of the Federal Government, certified as true and correct by the custodian of the original records and with a certificate by an official of the department showing the authority, incumbency, and genuineness of the signature of the certifying custodian, were properly authenticated and admissible in evidence.

3. Evidence that failed to connect the defendant with lottery operations during the period of time to which the indictment was expressly limited was not sufficient to support a conviction.

The grand jury of Thomas County returned a special indictment against the defendant in two counts for the offense of (1) selling lottery tickets, and (2) operating a lottery, between February 1 and February 28, 1963. The defendant filed a plea in abatement to the indictment upon grounds which are set forth in the opinion. The trial judge sustained the State's demurrer to the plea. Defendant was tried and convicted on both counts of the indictment. Error is assigned on sustaining of the demurrer to the plea and on the denial of the motion for new trial.

M. Dale English, Adel, Garland T. Byrd, Butler, for plaintiff in error.

Bob Humphreys, Sol. Gen., Moultrie, Marcus B. Calhoun, Sol. Gen., pro tem., Thomasville, for defendant in error.

HALL, Judge.

1. (a) The defendant's plea in abatement recites that Solicitor General Humphreys filed a petition in the Thoams County Superior Court alleging that 'there is now pending * * * an unusual number of cases involving illegal dealings in whiskey and lottery violations * * * that because of this fact he desires to secure the appointment of a solicitor general pro tem. to assist him in handling of these violations before the grand jury and in the trial of these cases * * *' and praying that 'an order issue appointing Marcus B. Calhoun, attorney, as Solicitor General Pro Tem of the Thomas Superior Court' (Empahsis supplied); and that in response to this petition, the Judge of the Superior Court of Thomas County appointed Mr. Calhoun Solicitor General Pro Tem. of the Thomas Superior Court. The plea further alleges that Mr. Calhoun's appointment as Solicitor General Pro Tem. was illegal and void in view of the fact that the Solicitor General was not absent, indisposed or disqualified from interest or relationship to engage in the prosecution of these cases, and that after the appointment both Mr. Calhoun and the solicitor general attended the grand jury, advised them and swore and examined witnesses before them on this indictment; and that therefore his plea should be sustained and the indictment be quashed.

Code § 24-2913 authorizes the presiding judge to appoint a solicitor general pro tem. 'When a solicitor is absent or indisposed, or disqualified from interest or relationship to engage in a prosecution * * *.' The propriety of the appointment is largely in the discretion of the trial court and the appellate courts will not interfere with that discretion unless it is abused. 'When the appointment is made [the appointee] is an officer de facto for any official purpose, and his acts are legal, even if there be some error in the appointment.' Statham v. State, 41 Ga. 507(2), 512; Code § 102-102(6).

However, even if we assume that Mr. Calhoun could not have been a solicitor general pro tem. under Code § 24-2913, we do not agree with the contention made by the defendant's plea. It matters not what technical description of title is placed upon Mr. Calhoun's appointment, the court will look to the substance rather than the name. It is elementary that a misnomer does not prevail over substance. Waller v. Morris, 78 Ga.App. 821, 822, 52 S.E.2d 583; Southern Guaranty Ins. Co. v. Beasley, 106 Ga.App. 64, 65, 126 S.E.2d 260. Furthermore, the court's order of appointment must be construed in reference to the petition. Bentley v. Still, 198 Ga. 743, 746, 32 S.E.2d 814; Stanfield v. Downing Company, 186 Ga. 568(1), 199 S.E. 113. The solicitor general's petition sought the appointment of Mr. Calhoun 'to assit him' in handling pending whiskey and lottery violations before the grand jury and on trial because of the 'unusual number of cases' in the Thomas Superior Court. This is in fact what Mr. Calhoun did--assisted the solicitor general before the grand jury on this indictment and in the prosecution of the case. He did not 'act in his place.' The solicitor general was present and engaged in the performance of his duties both before the grand jury and in the prosecution of the case. It is obvious therefore that Mr. Calhoun was sought, appointed and engaged in the performance of acts which are consistent with the duties of an assistant solicitor general rather than a solicitor general pro tem.

There is no statute of statewide application providing for the appointment of an assistant solicitor general. (For Acts authorizing the payment of compensation or appointment of various assistant solicitor generals in counties within a stated population bracket see the Editorial Note following Code Ann. § 24-2904.) 'Independent of statute, however, courts have long exercised discretionary power to appoint attorneys to assist the prosecuting attorney in criminal cases * * *.' 27 C.J.S. District and Prosecuting Attorneys § 28(1), p. 707; 42 Am.Jur. 242, § 10; accord Horton v. State, 11 Ga.App. 33, 34, 74 S.E. 559; Lindsay v. State, 138 Ga. 818, 822, 76 S.E. 369; Code § 24-2616.

'The almost universal practice is for the prosecuting attorney to appear before the Grand Jury in his official capacity and assist them in their investigation, examining witnesses and advising the Grand Jury on questions of law; but he is not as a general rule permitted to be present during the deliberations and voting of the jury.' 4 A.L.R.2d 400; 38 C.J.S. Grand Juries § 40, p. 1039; Code § 24-2908. 'Assistant or deputy prosecuting officers and special assistants to the regular prosecuting officer, duly authorized to assist the latter in the discharge of his duties, are invested with the same rights and subject to the same restrictions, with respect to appearing before the grand jury and participating in the proceedings before that body as the regular prosecuting officer * * *.' 38 C.J.S. Grand Juries § 40b, p. 1043; 4 A.L.R.2d 400; Meyers v. Second Judicial District Court, 108 Utah 32, 156 P.2d 711, 713; Shoemaker v. State, 58 Okl.Cr. 394, 53 P.2d 1133, 1134; State v. Coleman, 226 Iowa 968, 285 N.W. 269; State ex rel. Graves v. Southern, 344 Mo. 14, 124 S.W.2d 1176; People v. Blair, 17 Misc.2d 265, 33 N.Y.S.2d 183, 189; Commonwealth v. Brownmiller, 141 Pa.Super. 107, 14 A.2d 907; accord Clarke v. State, 44 Ga.App. 341, 161 S.E. 674; Christopher v. State, 21 Ga.App. 244, 94 S.E. 72; Williams v. State, 69 Ga. 11, 28. 'But the presence and participation in Grand Jury proceedings of a person assuming the role of a private prosecutor, retained by outside interests for the purpose of obtaining an indictment against particular individuals, is generally considered highly improper.' 4 A.L.R.2d 400; 38 C.J.S. Grand Juries § 40c, p. 1046; 24 Am.Jur. 863, § 43.

The trial judge did not abuse his discretion in appointing Mr. Calhoun to assist the solicitor general in the handling of this and other violations before the grand jury, in response to the petition of the Solicitor General showing that there were an unusual number of similar cases pending in the Thomas Superior Court.

(b) The defendant's plea objects to Mr. Calhoun entering upon his duties without being sworn. It not appearing how this prejudiced the defendant, the failure of the court to require Mr. Calhoun to be specifically sworn was not reversible error. Lindsay v. State, 138 Ga. 818, 822, 76 S.E. 369; Code § 89-310; Statham v. State, 41 Ga. 507, 512; Watson v. Dampier, 148 Ga. 588 2(b)(c), 97 S.E. 519.

(c) The defendant's plea further states that Mr. Calhoun was not an impartial and unbiased prosecuting officer, but had a personal interest in the matters in justifying his actions and advice taken and given professionally for pay. In support of this ground the plea shows that some three months prior to the solicitor general's petition for his appointment Mr. Calhoun was retained by the Mayor and Commissioners of the City of Thomasville, Georgia, as special prosecutor to supervise, direct, counsel and advise in the investigation and prosecution of the suspected liquor and lottery operations in the city about to commence; that Mr. Calhoun accepted this employment and performed these obligations by giving advice and counsel to the mayor, Commissioners, and police in their investigations, the procurement of...