Marchman v. State

• Decision Date: 04 March 1975
• Docket Number: No. 29453,29453
• Citation: 234 Ga. 40,215 S.E.2d 467
• Parties: Marvin MARCHMAN v. The STATE.
• Court: Georgia Supreme Court

Page 467

215 S.E.2d 467

234 Ga. 40

Marvin MARCHMAN v. The STATE.

No. 29453.

Supreme Court of Georgia.

March 4, 1975.

Rehearing Denied March 25, 1975.

Paul S. Weiner, Jonesboro, for appellant.

Ben J. Miller, Dist. Atty., Thomaston, Arthur K. Bolton, Atty. Gen., John W. Dunsmore, Jr., Asst. Atty. Gen., Atlanta, for appellee.

Lewis R. Slaton, Dist. Atty., Hinson McAuliffe, Sol., Carter Goods, Asst. Dist. Atty., Charles T. Shean, III, Johnny R. Moore, Atlanta, amicus curiae.

Syllabus Opinion by the Court

UNDERCOFLER, Presiding Justice.

On February 8, 1972, appellant was indicted and subsequently convicted of theft by taking a radio on January 20, 1972, described as 'one Narvo Avionics, Mark 16 Nov/Com., Serial No. 11FM7.' The proof showed the radio was a Narco. The Court of Appeals reversed the conviction because, '. . . the proof offered did not show that the stolen equipment was the same as that described in the indictment.' Marchman v. State, 129 Ga.App. 22, 24, 198 S.E.2d 425, 427.

On June 18, 1973, appellant was reindicted and subsequently convicted of theft by taking on January 20, 1973, 'one Mark 16 Narco aircraft radio with the number 11-FM7 stamped thereon.' Appellant filed a plea of former jeopardy. It was denied. The Court of Appeals affirmed holding in essence that on the first conviction, '. . . the variance was held fatal at the instance of the defendant. Thus, there was no trial on the merits and the defendant is not entitled to the protection of the jeopardy clause.' Marchman v. State, 132 Ga.App. 677, 209 S.E.2d 88. We granted certiorari.

We reverse. 'The 1968 Georgia Criminal Code has expanded the proscription of double jeopardy beyond that provided for in the United States and Georgia Constitutions . . . The first policy underlying the double jeopardy bar is to prevent harassment of the accused by successive prosecutions. State v. Estevez, 232 Ga. 316, 317, 318, 206 S.E.2d 475, 477.

In keeping with this policy Code Ann. § 26-506 provides, '(b) If the several crimes arising from the same conduct are known to the proper prosecuting officer at the time of commencing the prosecution and are within the jurisdiction of a single court, they must be prosecuted in a single prosecution except as provided in subsection (c). (c) When two or more crimes are charged as required by subsection (b), the court in the interest of justice may order that one or more of such charges be tried separately.' Ga.L.1968, pp. 1249, 1267. Under the facts of this case it is apparent that the crimes for which appellant has been prosecuted, if not the same, certainly arose out of the same conduct and were known to the prosecutor.

The Court of Appeals reversed appellant's first conviction because the evidence did not authorize the verdict. If the prosecution here on appeal is for the same crime for which appellant was previously prosecuted it is barred by Code Ann. § 26-507(d) which provides, 'a prosecution is not barred within the meaning of this section . . . (2) if subsequent proceedings resulted in the invalidation, setting aside, reversing, or vacating of the conviction . . . unless there was a finding that the evidence did not authorize the verdict.' Ga.L.1968, pp. 1249, 1267. If the prosecution here is for a different crime it is barred by Code Ann. § 26-507(b) which provides, 'A prosecution is barred if the accused was formerly prosecuted for a different crime, or for the same crime based upon different facts, if such former prosecution (1) . . . was for a crime with which the accused should have been charged on the former prosecution (unless the court ordered a separate trial of such charge) . . .' Ga.L.1968, pp. 1249, 1267.

Judgment reversed.

All the Justices concur, except INGRAM, HALL and HILL, JJ., who dissent.

HALL, Justice (dissenting).

I dissent to the sweeping, and, I am convinced, pernicious construction given by the majority opinion to Code Ann. § 26-507 dealing with former jeopardy. The result is that with respect to the evidence, the prosecutor must offer defendant a 'perfect trial,' or else defendant, though convicted by a jury, goes totally free and may not ever be prosecuted again. If this was the intent of the General Assembly of Georgia, it has chosen to create a stunningly permissive and totally unprecedented result. I do not think the legislature has intended any such thing. In fact, I believe it is the legislature which will be stunned-with the majority opinion.

The law of Georgia prior to the adoption of the 1968 Criminal Code was clear that where a defendant sought a new trial by motion for new trial in the trial court or by direct appeal to the appellate court on the ground that the evidence did not support the verdict, and was successful, he forfeited any right to plead former jeopardy. Staggers v. State, 225 Ga. 581, 170 S.E.2d 430; Pride v. State, 125 Ga. 750, 54 S.E. 688; Taylor v. State, 110 Ga. 150, 35 S.E. 161. This is the general rule throughout the United States. Green v. United States, 355 U.S. 184, 78 S.Ct. 221, 2 L.Ed.2d 199; Annot., 61 ALR2d 1143; 21 AmJur2d, 253, Criminal Law, § 209; 22 CJS, 707, Criminal Law, § 275. However, Marchman's first appeal to the Court of Appeals, in which that court ruled that a fatal variance occurred, is now said to be a reversal on the ground that the evidence did not support the verdit; and, reversal having occurred on that ground, the double jeopardy provision is said to prohibit retrial. How has this result, diametrically opposed to the universal rule set out above, come about? The majority opinion says it must come about because Code Ann. § 26-507 has axed the universal rule. I would not so hold except upon clear and convincing language, which I do not find in this Code section.

The pertinent section (26-507(d)) appeared in the Proposed Criminal Code of Georgia prepared by the Criminal Law Study Committee to revise the Georgia Criminal Law and that section, as recommended by that committee, stated that a second 'prosecution is not barred within the meaning of this section . . . if subsequent proceedings resulted in the invalidation, setting aside, reversing, or vacating of the conviction, unless the accused was thereby adjudged not guilty.' The committee notes explaining the subsection state that 'further proceedings in a case are permissible and do not constitute a bar unless the proceedings at one time resulted in an adjudication that the accused was not guilty.' The proposed Code (House Bill 5) was introduced in the House and came out of the House Judiciary Committee as a Committee Substitute. See House Bill 5, House Journal 1968, Vol. 1, p. 18. Among the numerous changes the following words were added at the end of the subsection, 'or unless there was a finding that the evidence did not authorize the verdict.' Id. pp. 27, 41. Did the General Assembly intend to radically change the law of former jeopardy in Georgia from that which it has been since our first code and from that proposed by Criminal Law Study Committee? Did the General Assembly intend to give criminals in Georgia rights that they will not find in other jurisdictions? Did they intend to make a motion for new trial on the general grounds a non sequitur and allow the grant to amount not to a 'new trial' but to a guarantee of 'no trial at all'-that is, a pardon? I respectfully submit they did not.

In construing the new Criminal Code we should not yield to the tyranny of literality or mechanical jurisprudence and thereby create our own verbal prison. Anything that is written may present a problem of meaning. 'Legislation has an aim . . . That aim, that policy is not drawn, like nitrogen, out of the air; it is evinced in the language of the statute, as read in the light of other external manifestations of purpose.' Frankfurter, Some Reflections on the Reading of Statutes, 47 Col.L.R. 527, 538-539. Cardozo's admonition was that 'the meaning of a statute is to be looked for, not in any single section, but in all the parts...