Tant v. State, s. 45846
| Decision Date | 16 April 1971 |
| Docket Number | Nos. 45846,45847,No. 1,s. 45846,1 |
| Citation | 123 Ga.App. 760,182 S.E.2d 502 |
| Parties | Ed TANT v. The STATE. Mark BOATNER v. The STATE |
| Court | Georgia Court of Appeals |
Albert M. Horn, Atlanta, for appellants.
E. W. Fleming, Dist. Atty., Hogansville, Arthur K. Bolton, Atty. Gen., Harold N. Hill, Jr., Executive Asst. Atty. Gen., Marion O. Gordon, Asst. Atty. Gen., William R. Childers, Jr., Asst. Atty. Gen., Atlanta, for appellee.
Syllabus Opinion by the Court
The appellants were charged with illegal possession of drugs and, upon conviction, appealed to the Supreme Court of Georgia, which court transferred the case to this court for review and decision. Held:
1. No constitutional questions relating to the validity of the Act under which appellants were convicted were properly raised in the court below (see Tant v. State, 226 Ga. 761, 177 S.E.2d 484), and will therefore not be passed upon by this court on appeal. Bourn v. Herring, 225 Ga. 67, 166 S.E.2d 89; Harper v. Burgess, 225 Ga. 420, 169 S.E.2d 297.
2. The police officer undercover agent here did nothing to entice or trick or persuade the defendants to commit the crime of which they were charged and convicted within the ruling in Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081, but, on the contrary, the police officer was invited to attend the drug smoking party; nor was such officer, because he also held and smoked the pipe containing the drug, an accomplice within the meaning of the rule that a conviction of felony cannot rest upon the uncorroborated testimony of an accomplice.
3. (a) The evidence as to the prejudice and bias in the community related to a very small number of people and was based primarily upon news publicity, most of which was composed of articles written by one of the defendants in a college newspaper, a local newspaper item with the pictures of the defendants and a narrative of their arrest. The facts stated in the latter article were proven without contradiction on the trial. The evidence failed to show a 'probability of unfairness' or a 'reasonable likelihood' that a fair trial could not be obtained as applied in the ruling of Sheppard v. Maxwell, 384 U.S. 333, 86 S.Ct. 1507, 16 L.Ed.2d 600. Nor does the voir dire examination of jurors, some of whom had read such articles, show anything to the contrary.
(b) Nor did the trial court abuse its discretion in permitting a juror to serve who had read the local newspaper articles and had seen the pictures where such juror said that he 'believed' he could serve without prejudice and could render a just verdict under the evidence.
4. The acceptance and holding of the pipe containing the drug for the purpose of smoking it, and doing so, is sufficient possession of the drug to authorize a conviction of the charge made, and it follows that the testimony of the officer that the defendants, when they took the pipe with the drug in it, took 'possession,' was not a conclusion of the witness; nor would the requested charge to the jury that the State had failed to prove possession of the drug have been a proper one. The ruling in Graham v. State, 150 Ga. 411, 104 S.E. 248 that the proof of drunkenness is not proof of guilty possession of alcoholic beverages when it was no crime to consume such beverages is not controlling here. See in this connection Pierce v. State, 43 Ga.App. 435, 437, 159 S.E. 125 commenting upon the Graham case and the facts therein and Dukes v. State, 90 Ga.App. 50, 81 S.E.2d 864, in which it was stated that 'the gist of the ruling in (the Graham case) is to the effect that one cannot be convicted of possessing and controlling intoxicating whisky on evidence that he was seen intoxicated.'
5. Enumerations of error not herein dealt with and not argued in the briefs of counsel will be considered as abandoned.
Judgments affirmed.
The State's witness, a narcotics agent, came to the apartment occupied by Tant and Boatner at Boatner's request. Boatner invited the witness to a back room which there was a girl, another man, Tant and himself. The defendants were students at a local college. A pipe containing a small amount of a marijuana derivative was passed around, each person taking a puff, and the empty pipe returned to the girl who refilled it from a vial in her pocketbook, exhausting the container of its contents. She then lit it and passed it around. Tant, Boatner and the witness put the pipe to their lips. The witness testified that he drew smoke into his mouth, he did not inhale it, he did not know whether Tant and Boatner inhaled it or not, he forthwith arrested the occupants because 'the evidence was about to be exhausted,' and retrieved some residue scrapings from the pipe later identified as hashish. The girl admitted sole ownership of the marijuana derivative. Everybody denied ownership of the pipe or knowing to whom it belonged; it was described as just lying around, as sort of communal.
The operative statute is Code Ann. § 79A-803 which forbids any person to 'manufacture, possess, have under his control, sell, prescribe, administer, dispense, or compound' any narcotic drug except as authorized within the statute. 'Use' of the drug is not a penal offense. The question is whether receiving a lit pipe momentarily to take one or two puffs is possession or control of the drug within the meaning of the statute. The statute is the same in form as Code § 58-201 which forbids any person to 'have, control or possess * * * whether intended for personal use or otherwise' intoxicating liquors. Under the latter statute in Mikell v. State, 94 Ga.App. 627, 95 S.E.2d 691 the conviction of a defendant for possession and control was reversed where evidence showed that while the defendant was eating supper another person came in and offered him a drink and he accepted, there being no evidence that the liquor belonged to the defendant. The case was held controlled by Graham v. State, 150 Ga. 411, 412, 104 S.E. 248, 249, where it was held that Under these cases a verdict of reversal is demanded.
I am authorized to state that HALL, P.J., and EBERHARDT, J., concur in this dissent.
This case graphically illustrates the malfunction of our present system of two separate appellate courts having jurisdiction of criminal cases. The result has been confusing jurisdictional problems (which is the proper appellate court?), conflicting ...
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