Partain v. State
| Decision Date | 29 June 1976 |
| Docket Number | No. 2,No. 51969,51969,2 |
| Parties | J. D. PARTAIN v. The STATE |
| Court | Georgia Court of Appeals |
Herbert Shafer, Atlanta, for appellant.
Lewis R. Slaton, Dist. Atty., Joseph J. Drolet, Carole E. Wall, H. Allen Moye, Asst. Dist. Attys., Atlanta, for appellee.
The defendant was indicted in two counts for violation of the Georgia Controlled Substances Act: possession of marijuana and possession of cocaine. He was acquitted on the marijuana charge and convicted of possessing cocaine. He appeals the judgment of conviction and the denial of his motion for new trial. Held:
1. The evidence shows that the defendant's apartment was searched by agents of the Georgia Bureau of Investigation. The agents found a pair of scales with a white residue on the metal pans and a pipe containing a leafy material. The State Crime Lab analyzed the white residue on the metal pans and found it positive for cocaine. The examiner from the Crime Lab testified that the white residue on the pans was slightly visible; it was so slight that it could not be weighed in the Crime Lab. In order to determine the nature of the residue, the examiner washed the pans in an acid solution and examined the acid washings. This acid washing was then thrown away. The examiner testified that the powder was positive for cocaine, but he could not determine the concentration of cocaine in the powder.
2. Defendant argues that he was denied due process of law because his expert was unable to examine the alleged cocaine. This court has held that a defendant's constitutional rights are not violated by the absence of an independent analysis of a drug which has been examined by the State Crime Lab. See Patterson v. State, 138 Ga.App. 290, 226 S.E.2d 115. Accordingly, this enumeration of error is without merit.
3. Defendant urges error in the court's refusing to grant a new trial on the grounds that the prosecutor made prejudicial statements during closing argument. No objection was made to the prosecution's comments during the trial of the case. Daniels v. State, 230 Ga. 126(2), 195 S.E.2d 900.
4. Defendant made a motion after the trial of the case to supplement the record with his proposed requests to charge. The trial court denied the motion and stated in its order: We find no error in the trial court's denial of the defendant's motion to supplement the record.
5. Defendant enumerates error to the trial court's failure to rule as a matter of law that there was an insufficient amount of the alleged drug to convict the defendant. This court has never decided whether there may be a 'minimum amount of an illegal substance below which no claim of intentional possession will be sustainable.' See Wallace v. State, 131 Ga.App. 204, 205(2), 205 S.E.2d 523, 525.
Regardless of the amount, however minute, if it is enough for the officers to recover, as small as it may be, and capable of being identified by expert chemical analysis, such testimony would be sufficient when considered with other evidence as to possession.
As the law now reads it refers to any substance of 'coca leaves, any salt, compound, derivative, or preparation of coca leaves,' or any substances which are chemically equivalent or identical with any of these substances containing cocaine, but not decocainized coca leaves or extractions. See Code Ann. § 79A-807 Schedule II (Ga.L.1974, pp. 221, 235).
Accordingly, the trial court did not err in failing to rule as a matter of law that there was an insufficient amount of the alleged drug to convict the defendant.
6. Defendant argues that the trial court improperly charged the jury regarding the quantity of narcotic necessary to sustain a conviction. The trial judge was authorized to charge the statute as to possession of any substance containing cocaine as being illegal. See Code Ann. § 79A-807, supra. The charge as given was correct as the court specifically explained to the jury that it was not intimating whether or not there had been possession of a prohibited substance as to the amount, large or small. The jury is the judge of both the law and the fact in this State. See Constitution of 1945 (Code Ann. § 2-201); Code Ann. § 27-2301. The question as to the amount of the substance was solely for jury determination under the law as given by the court in its charge.
But we find no enumeration of error complaining of the charge. Therefore, we cannot pass on this question since it is not properly before this court for review.
Judgment affirmed.
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Bright v. State
...amount of cocaine, he may not be convicted of the possession thereof. The law in this state is to the contrary. Partain v. State, 139 Ga.App. 325, 228 S.E.2d 292 (1976); Lush v. State, 168 Ga.App. 740, 743(6), 310 S.E.2d 287 (1983). Moreover, contrary to Bright's contention, we conclude tha......
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Rogers v. State, 60211
...so small they could not be seen, used or weighed." We are urged "to reconsider this problem" that was settled in Partain v. State, 139 Ga.App. 325(5), 228 S.E.2d 292, affd. 238 Ga. 207, 232 S.E.2d 46. Therein we held: "Regardless of the amount, however minute, if it is enough for the office......
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State v. Robinson, 1726
...See Robbs v. Commonwealth, 211 Va. 153, 176 S.E.2d 429 (1970); State v. Dodd, 28 Wis.2d 643, 137 N.W.2d 465 (1965); Partain v. State, 139 Ga.App. 325, 228 S.E.2d 292 (1976), aff'd, 238 Ga. 207, 232 S.E.2d 46 (1977); State v. Thomas, 20 N.C.App. 255, 201 S.E.2d 201 (1973), cert. denied, 284 ......
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Fulton County v. Collum Properties, Inc.
...properly before this court for review. Roberts v. Cotton States Mut. Ins. Co., 186 Ga.App. 371, 373, 367 S.E.2d 272; Partain v. State, 139 Ga.App. 325(6), 228 S.E.2d 292. Further, " '[a]n enumeration of error cannot be enlarged at the appellate level by statements in the briefs of counsel t......