Stewart v. State
| Decision Date | 25 June 1980 |
| Docket Number | No. 35849,35849 |
| Parties | STEWART v. The STATE. |
| Court | Georgia Supreme Court |
W. Benjamin Ballenger, Boney & Boney, William U. Hyden, Jr., Summerville, for appellant.
William Campbell, Dist. Atty., for appellee.
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: (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.
"Code Ann. 99-9904" is the code annotated number assigned by The Harrison Company, publishers of the Code of Georgia Annotated, to Section 13(a) of Ga.Laws 1965, pp. 385, 391, Ga.L.1973, pp. 183, 184 (). 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 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 fails to inform her of which statements the state contends are false, what information she failed to disclose, and other facts necessary to put her on reasonable notice of the acts against which she must defend.
Although the defendant filed several demurrers, this alleged defect in the indictment was not raised by any of them unless it is encompassed in the demurrer attacking the indictment "upon the ground that the allegations therein are not sufficient to charge this defendant with any offense under the laws of this State, and said indictment is wholly insufficient in law." (This ground of demurrer raises no constitutional attack.)
Code § 27-701 provides that "Every indictment (or) accusation of the grand jury shall be deemed sufficiently technical and correct, which states the offense in the terms and language of this Code, or so plainly that the nature of the offense charged may easily be understood by the jury. . . ." This indictment satisfies these requirements by tracking the language of Section 13(a) of Ga.L.1973, pp. 183, 184, supra, and by being clear and easily understood. An indictment which charges a defendant with the commission of a crime in the language of a valid statute is sufficient to withstand a demurrer charging that the indictment is insufficient to charge the defendant with any offense under the laws of this state. Eubanks v. State, 217 Ga. 588(1), 124 S.E.2d 269 (1962); compare Langston v. State, 109 Ga. 153, 35 S.E. 166 (1899), where the demurrer was directed specifically to the words "false and fraudulent means."
This indictment was not subject to the demurrer urged before and ruled on by the trial court. We do not decide whether a demurrer in the language of this enumeration of error would have been proper under the authority of Langston v. State, supra. The trial court did not err in overruling the demurrer.
3. Stewart argues that state's exhibit 21 was prepared by a person who did not testify and was not subject to cross examination and that this violated her right of confrontation. She argues further that exhibit 21 was not properly authenticated and was not the best evidence available.
Exhibit 21 consists of several forms which were transmitted by DFCS (department of family and children services) to Stewart's employer, Riegel Textile Corporation, with a request that payroll information relating to Stewart for certain periods of time be provided. 1 The forms were completed by Elaine Blalock, a Riegel payroll clerk, and returned to DFCS. At trial, the state called Ms. Blalock's supervisor, Johnny Cunningham, to authenticate these documents. While testifying, Mr. Cunningham had a copy of exhibit 21 and copies of each relevant page of the Riegel payroll records covering the 40 weeks in question. He testified that exhibit 21 was prepared by his employee, Ms. Blalock, under his supervision and control from payroll records which are under his supervision, custody and control. He also stated that he had checked some, but not all, of the figures extracted by Ms. Blalock and found each that he checked to be accurate. Cunningham explained that the original payroll record as a whole "is a voluminous document, one week is probably four hundred IBM pages of printout of solid copy, and one year's would be a stack of documents of approximately four feet high." It appears from the objection by defendant that she was not asserting that the entire payroll record need be introduced but only that the copies of the pages relevant to her wage record be introduced rather than the summaries provided to DFCS by Ms. Blalock. As noted above, Mr. Cunningham had photocopies of the relevant pages of the payroll records with him at trial. When the defendant moved for introduction of...
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