Tift v. State, 49859
| Decision Date | 04 December 1974 |
| Docket Number | No. 49859,No. 1,49859,1 |
| Citation | 211 S.E.2d 409,133 Ga.App. 455 |
| Parties | John H. TIFT v. The STATE |
| Court | Georgia Court of Appeals |
John L. Tracy, Robert M. Drake, Albany, for appellant.
William S. Lee, Dist. Atty., Robert E. Baynard, Asst. Dist. Atty., Albany, for appellee.
Syllabus Opinion by the Court
In this appeal from a conviction for possession of less than one ounce of marijuana defendant seeks a reversal on the basis of three enumerations of error. The first of these is lacking in merit but the remaining two assignments require a reversal.
1. There was no violation of the sequestration rule in permitting the police lieutenant who was the designated prosecuting officer to testify. This witness was named on the accusation as the prosecutor. As such he was entitled to remain in the courtroom. When the district attorney presented the state's proof he did so chronologically beginning with the policeman who made the arrest. He then placed the prosecuting lieutenant on the stand as the second witness. The defense objection to permitting him then to testify was overruled, this being the basis of the appellant's first enumeration of error. The trial court ruled correctly and in accordance with Hudgins v State, 13 Ga.App. 489, 79 S.E. 367 and Sparks v. State, 121 Ga.App. 115, 116(3), 173 S.E.2d 239. The cases of Bush v. State, 129 Ga.App. 160, 199 S.E.2d 121 and Childers v. State, 130 Ga.App. 555, 203 S.E.2d 874, relied upon by appellant have no application to the facts of the case at bar. Additionally, it should be noted that the testimony of the lieutenant had no connection with the arrest evidence presented by the first witness but was limited to the manner in which the contraband was handled by the police department.
2. The defense was based upon lack of knowledge of the prosence of marijuana in a jacket which he had acquired from another 'dude' a few minutes before the arrest, that he had not been through the pockets and therefore had no knowledge thereof. After the trial judge had completed his charge to the jury, defense counsel requested the court for an instruction as to 'knowledgeable possession.' The court requested this to be placed in writing which was done, but upon recalling the jury this element was not included in the subsequent instructions. Appellant renewed his objection and enumerates this failure as error.
Before any conduct can be considered criminal, it must include a mens rea. That is 'A guilty mind; a guilty or wrongful purpose; a criminal intent.' Black's Law Dictionary (4th Ed.). That essential is included in our statutory definition that 'A crime is a violation of a statute of this State in which there shall be a union of joint operation of act, or omission to act, and intention, or criminal negligence.' Code Ann. § 26-601.
Many of our generation's appellate court rulings on appeal of today's 'Drug Age' cases stem from precedents established during the so-called 'Prohibition Years' when whiskey was illegal. One of those applicable to the instant case is Harvill v. State, 29 Ga.App. 68, 113 S.E. 219. The headnote reads: 'Failure to charge the jury that 'if the defendant had no knowledge of the liquor being in the car, he could not be convicted' was error requiring a new trial, in view of the evidence and the contentions of the accused, who was charged with having possession of intoxicating liquor found in an automobile.' That ruling and the cases cited therein require us to hold the trial court erred.
The state contends the request to charge was not timely filed as required under Code Ann. § 70-207(b). See Curtis v. State, 224 Ga. 870, 874(9), 165 S.E.2d 150. In our view the nature of this defense required that the jury be informed as to the law thereof...
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Clark v. State
...constituted the necessary mens rea, or criminal intent, which was properly defined per the statutory definition. See Tift v. State, 133 Ga.App. 455(2), 211 S.E.2d 409; Andrews v. State, 134 Ga. 71, 67 S.E. 10. The trial judge did not err, as contended in enumerated error 14, in admitting in......
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McGee v. State
...element of criminal intent required new trial on charge of possession of cocaine with intent to distribute); Tift v. State, 133 Ga.App. 455, 456–457(2), 211 S.E.2d 409 (1974) (failure to charge jury on “knowledgeable possession” constituted reversible error in drug possession case). 3. McGe......
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Chastain v. State
...Roach v. State, 221 Ga. 783(7), 147 S.E.2d 299 (1966); Hudgins v. State, 13 Ga.App. 489(2), 79 S.E. 367 (1913); Tift v. State, 133 Ga.App. 455(1), 211 S.E.2d 409 (1974). The prosecutor may testify as a witness after other witnesses for the State have testified. Roach, supra at 787, 147 S.E.......
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Walker v. State
...as to the general principles of law which of necessity must be applied in reaching a correct verdict on the issue. Tift v. State, 133 Ga.App. 455, 457, 211 S.E.2d 409; Foskey v. State, 126 Ga.App. 268, 190 S.E.2d 556. Nevertheless, it was not necessary in this instance to charge that the ju......