Stewart v. State, 35849

CourtSupreme Court of Georgia
Citation268 S.E.2d 906,246 Ga. 70
Docket NumberNo. 35849,35849
PartiesSTEWART v. The STATE.
Decision Date25 June 1980

Page 906

268 S.E.2d 906
246 Ga. 70

No. 35849.
Supreme Court of Georgia.
Argued Jan. 22, 1980.
Decided June 25, 1980.

Page 908

[246 Ga. 76] W. Benjamin Ballenger, Boney & Boney, William U. Hyden, Jr., Summerville, for appellant.

William Campbell, Dist. Atty., for appellee.

[246 Ga. 70] HILL, Justice.

Rosie Stewart was indicted by the grand jury of Chattooga County in February, 1979, for the offense of fraud in obtaining public assistance, as follows: "For that the said Rosie Stewart did on or about the 28th day of February . . . (1977) . . . unlawfully commit the offense of fraud in obtaining public assistance in that the said Rosie Stewart did by means of false statements and failure to disclose information to the Chattooga County Department of Family & Children Services, obtain $764.00 in public assistance; $928.00 in bonus food coupons and $15.07 in medicaid payments to which she was not entitled, contrary to the laws of said State. . . ." (The evidence at trial disclosed that these sums were paid during nine months over a two year period.)

The defendant demurred to, and moved to quash, the indictment on the ground that the law on which it was based was unconstitutionally vague, indefinite and uncertain, in violation of the 5th, 6th and 14th Amendments and Art. I, Sec. I, Par. I (Code Ann. § 2-101) of the Constitution of Georgia of 1976. She also demurred to the indictment on the ground that the allegations therein are not sufficient to charge the defendant with an offense against the laws of this state.

After the demurrers and motion to quash were overruled, the defendant was tried, was found guilty by the jury of committing a felony and was sentenced to serve two years. On appeal, she enumerates error on the overruling of her demurrers and motion to quash, on the admission of certain testimony and documentary evidence and on the denial of her motion for directed verdict.

1. Stewart's first enumeration of error is that the law on which the indictment is based is unconstitutionally vague in that it makes it a crime to receive public assistance to which a person is "not entitled" without defining "entitlement" or referring to statutes, rules or regulations pursuant to which entitlement is determined. She cites Code Ann. § 99-9904 as being the law on which the indictment is based.

Page 909

"Code Ann. 99-9904" is the code annotated number assigned [246 Ga. 71] by The Harrison Company, publishers of the Code of Georgia Annotated, to Section 13(a) of Ga.Laws 1965, pp. 385, 391, as amended by Ga.L.1973, pp. 183, 184 (the effect of the 1976 amendment, Ga.L.1976, pp. 1490, 1491, effective April 6, 1976, is not involved here). The law on which the indictment in this case is based was the statute enacted by the General Assembly in which the publisher found the text which it numbered § 99-9904. That is, the law on which the indictment is based was Ga.Laws 1965, p. 385, as amended. The constitutionality of an act of the General Assembly must be determined by examination of its act (as it existed at the time of the alleged offense), not by examination of an isolated section of the annotated code.

The 1965 act, entitled "Georgia Public Assistance Act of 1965" (Ga.L.1965, pp. 385, 386; Code Ann. § 99-2901 et seq.), begins with certain definitions, and authorizes the Department of Human Resources to establish categories of public assistance (including aid to families with dependent children), and to establish rules and regulations to carry out the provisions of the act. Sections 4 and 5 of the act (Code Ann. §§ 99-2904, 99-2905) provide that public assistance shall be awarded to individuals who are residents of this state and are eligible under one of the categories established pursuant to the act as determined in accordance with the regulations of the department, in such amounts as shall be determined in accordance with regulations approved by the Commissioner.

Sections 7 and 8 of the act (Code Ann. §§ 99-2907, 99-2908) provide that upon receiving an application for public assistance, the county department of family and children services shall make an investigation to ascertain (verify) the facts supporting the application and shall decide whether the applicant is eligible for assistance and determine the amount of such assistance in accordance with the rules and regulations of the department.

Section 13(a) of Ga.L.1965, pp. 385, 391, as amended, Ga.L.1973, pp. 183, 184, provides in pertinent part as follows: "Any person who by means of a false statement, failure to disclose information, or impersonation, or by other fraudulent device, obtains or attempts to obtain . . . (1) any grant or payment of public assistance, food stamps, or medical assistance (medicaid) to which he is not entitled; (2) a larger amount of public assistance, food stamp allotment, or medical assistance (medicaid) than that to which he is entitled . . . shall be punished as for a misdemeanor unless the amount or value of public assistance, food stamps or medical assistance (medicaid) so obtained exceeds $500 in which event such person shall be punished as for a felony and sentenced from 1 to 3 years." The 1976 [246 Ga. 72] amendment changed the last sentence and increased the penalty to from 1 to 5 years (Ga.L.1976, pp. 1490, 1491). Section 13(a) of the 1965 act, as amended, appears in essentially the same form at both Code Ann. § 99-2912 and Code Ann. § 99-9904.

As can be seen, the amount of public assistance or food stamp allotment to which an applicant is entitled is determined by the county department of family and children services based upon information disclosed, or not disclosed, by the applicant. The applicant is put on notice by the act that giving false statements, or failing to disclose requested information, to obtain public assistance constitutes a crime. We do not find the act subject to the constitutional attack made.

2. Stewart's second enumeration of error on appeal is that the indictment is legally insufficient under Code Ann. § 27-701 and the fifth, sixth and fourteenth amendments because it charges that she "did by means of false statements and failure to disclose information" commit the offense of fraud in obtaining public assistance. She argues that the indictment...

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    • United States
    • United States Court of Appeals (Georgia)
    • 31 Marzo 1998
    ...court overrules the objection, then the court has impliedly accepted the witness [232 Ga. App. 208] as an expert. See Stewart v. State, 246 Ga. 70, 75(4), 268 S.E.2d 906 (1980); Lindley v. State, 225 Ga.App. 338, 340, 484 S.E.2d 33 (1997); Bacon v. State, 225 Ga.App. 326, 327, 483 S.E.2d 89......
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