Tischmak v. State

• Decision Date: 18 November 1974
• Docket Number: Nos. 1,3,2,No. 49298,49298,s. 1
• Citation: 211 S.E.2d 587,133 Ga.App. 534
• Parties: Ken TISCHMAK v. The STATE
• Court: Georgia Court of Appeals

Page 587

211 S.E.2d 587

133 Ga.App. 534

Ken TISCHMAK v. The STATE.

No. 49298.

Court of Appeals of Georgia, Division Nos. 1, 2, 3.

Nov. 18, 1974.

Rehearing Denied Dec. 16, 1974.

Albert Horn, Atlanta, for appellant.

Eldridge W. Fleming, Dist. Atty., Hogansville, William F. Lee, Jr., Asst. Dist. Atty., Newnan, for appellee.

Syllabus Opinion by the Court

PER CURIAM.

The defendant was convicted under a two-count indictment. On the first count involving the sale of phencyclidine, the defendant was sentenced to one year based on the jury verdict. On the second count involving possession of less than one ounce of marijuana, the jury also found the defendant guilty. The trial judge in sentencing the defendant set the sentence under the second count at six months and provided the sentences were to run consecutively.

The defendant filed a motion for new trial and upon it being overruled appealed to this court. Held:

1. Counsel for the defendant contends that the trial judge erred in overruling the motion to quash the indictment because phencyclidine is not a drug prohibited by the Georgia Drug Abuse Control Act. Code Ann. Ch. 79A-9 (Ga.L.1967, pp. 296, 343 (now repealed by Ga.L.1974, p. 221 but in effect for this case)).

The Georgia Drug Abuse Control Act prohibits the sale of depressant or stimulant drugs as therein defined. Under the definitions within the Act, a depressant or stimulant drug is: 'Any drug which contains any quantity of a substance designated by present regulations promulgated under the Federal Act as having potential for abuse because of its depressant or stimulant effect on the central nervous system or its hallucinogenic effect.' Code Ann. § 79A-903(b)(3) (Ga.L.1967, pp. 296, 344; 1970, pp. 470, 471). The Georgia Supreme Court in Johnston v. State, 227 Ga. 387(2), 181 S.E.2d 42, held that this provision of the Act referred to the federal regulations promulgated under the Federal Act as of the time of the enactment of the Georgia law in 1967. An examination of such regulations reveals no prohibition against phencyclidine.

Code Ann. § 79A-903(b)(4) sets out: 'Any substance which the State Board shall determine to be habit-forming because of its stimulant effect on the central nervous system or any drug which the State Board shall determine to contain any quantity of a substance having a potential for abuse because of its depressant or stimulant effect on the central nervous system or its hallucinogenic effect.' An examination of the regulations of the State Board reveals that at the time of the commission of the act in question that the state board had found phencyclidine hydrochloride to be a depressant or stimulant drug within the meaning of the Act. Under the provisions of the Administrative Procedure Act, we take judicial notice of the rules promulgated by the State Board of Pharmacy. Code Ann. § 3A-108 (Ga.L.1964, pp. 338, 346).

The indictment charges the defendant with the unlawful sale of phencyclidine. The evidence reveals from the testimony of one of the State's witnesses that the substance found on the defendant was phencyclidine hydrochloride. In Ellis v. State, 132 Ga.App. 684, 209 S.E.2d 106, a majority of this court sanctioned testimony utilized on the trial of the case to prove that substances named in the indictment were drugs prohibited by Code Ann. § 79A-702 (Ga.L.1967, pp. 296, 323; 1972, pp. 948, 949) and Code Ann. § 79A-802 (Ga.L.1967, pp. 296, 325; 1970, p. 470 (now repealed by Ga.L.1974, p. 221 but in effect for this case)). In view of the great similarity between these sections and Code Ann. § 79A-903, we hold that the indictment was sufficient to inform the defendant as to the nature of the crime with which he was charged and to sustain a conviction on proof such as here offered.

2. (a) 'A question asked in the language of this Code section is in proper form to ascertain whether the juror is competent or not in qualifying a jury in a felony case, and the use of the word 'crime' in the statutory form of the question given by the Code is not objectionable on the ground that it assumes in advance that a crime has been committed.' Bloodworth v. State, 119 Ga.App. 677(1), 168 S.E.2d 334.

(b) The record before us is not sufficient to sustain any of the attacks made on the composition of the grand or traverse jury. Garrett v. State, 133 Ga. 564, 211 S.E.2d 584. See Hill v. State, 232 Ga. 800, 804(3), 209 S.E.2d 153.

(c) No error was committed in refusing to permit counsel to ask certain questions on voir dire.

3. On cross examination of the defendant, sworn as a witness, the following testimony was elicited: 'Q. And you did sell her (the prosecution's witness) some phencyclidine? A. PCP. Q. That's what you call it. So you did sell it to her; is that right? A. Yes . . . Q. And you did have this marihuana? A. Yes, sir. Q. It was where, in your pocket? A. Yes, sir . . . Q. It (the indictment) says you, not being authorized under any provision of the Georgia Drug Control Act to do so, did distribute and sell to Jeannine Metevier phencyclidine. Did you do that? A. Yes sir. Q. It also says that you had in your possession, not being authorized under any of the provisions of the Georgia Drug Abuse Control Act to do so, you had in your possession unlawfully marihuana in an amount of less than one ounce? A. Yes, sir. Q. And you are admitting your guilt under these two counts in the indictment; is that correct? A. Yes, sir.'

'A defendant's admission in open court is an admission in judicio, and the fact therein stated may be taken as true without further proof. Dumas v. State, 62 Ga. 58, 59.' Thaxton v. State, 89 Ga.App. 536, 538, 80 S.E.2d 76. See also Hargroves v. State, 179 Ga. 722(4), 177 S.E. 561.

'Where in a criminal case not only the evidence but the defendant's statement demanded the verdict rendered, a new trial will not be granted, even though the judge may have committed errors in his charge to the jury, in rulings on evidence, and in refusing to order a mistrial on account of improper argument of counsel. If the jury reached the only result which was legally possible in the case, the judgment of the trial judge will not be reversed merely for the purpose of allowing the case to be heard again, in order that the same result may be more technically reached.' Robertson v. State, 95 Ga.App. 445, 447, 98 S.E.2d 199, 201. See Williams v. State, 15 Ga.App. 311, 82 S.E. 817; Kennedy v. State, 51 Ga.App. 543, 181 S.E. 139; Pennington v. State, 117 Ga.App. 701, 704, 161 S.E.2d 327.

The evidence demanded a verdict of guilt on Counts 1 and 2 of the indictment and the judgment of conviction must be affirmed.

4. In this case the jury first found the defendant guilty and then set the sentence under the first count at one year and merely found the defendant guilty under the second count which was a misdemeanor. The Supreme Court has held: 'If there are two or more convictions in a multi-count indictment, the jury must prescribe the sentence to be served on each count. And unless the jury specifies that the sentences imposed are to run consecutively, then the law (Code Ann. § 27-2510) is that they shall run concurrently . . . a trial judge does nto have legal authority to say whether does not have legal authority to say whether indictment shall run concurrently or consecutively. Under our present statutes that function is solely within the province of the jury.' Wade v. State, 231 Ga. 131, 134, 200 S.E.2d 271, 274. See Gandy v. State, 232 Ga. 105, 205 S.E.2d 243.

The rule above cited is not decisive in the case sub judice because under Code Ann. § 27-2534 (Ga.L.1970, pp. 949, 950) (now repealed by Ga.L.1974, p. 352 but in effect for this case) the jury sets the sentence for felonies but not for misdemeanors. See Code Ann. § 27-2506 (Ga.L.1956, pp. 161, 168; 1957, pp. 477, 482; 1964, p. 485; 1970, pp. 236, 241; 1972, p. 600). Thus, as to the second count which was a misdemeanor the trial judge properly prescribed the sentence and perforce had the concomitant authority to provide for the sentence to be consecutive to Count 1.

Judgment affirmed.

BELL, C.J., and MARSHALL, J., concur.

QUILLIAN and WEBB, JJ., concur specially.

PANNELL, P.J., concurs in the judgment only.

DEEN, P.J., and EVANS, CLARK and STOLZ, JJ., dissent.

QUILLIAN, Judge (concurring specially).

1. While giving full recognition to the law regarding judicial notice of the rules promulgated by the State Board of Pharmacy, I do not believe that this court can take judicial notice that the phencyclidine referred to in the indictment is phencyclidine hydrochloride.

The evidence offered on the trial would not serve to breathe life into or validate a void indictment. As held in Daniel v. State, 63 Ga.App. 12(1), 10 S.E.2d 80: 'An indictment may be quashed on oral motion for any defect for which the judgment on it should be arrested. However, a motion to quash does not question the competency or sufficiency of the evidence which induced the judgment . . . The motion deals solely with the record and the verdict, and the evidence cannot be considered on such a motion.'

Count 1 of the indictment accusing the defendant for the sale of phencyclidine charges no crime and was thus subject to the motion to quash the indictment.

However, I am bound to follow the recent decision of this court in Ellis v. State, 132 Ga.App. 684, 209 S.E.2d 106, and thus concur for that reason only.

2. With regard to Division 4 of the main opinion, Code Ann. § 27-2510 (Ga.L.1956, pp. 161, 168; 1964, p. 494) provides, as to either felony or misdemeanor sentences, that unless specified two or more sentences shall be served concurrently. Code Ann. § 27-2534 (Ga.L.1970, pp. 949, 950 (now repealed by Ga.L.1974, p. 352, but in effect for this case)) provided that the jury consider the matter of punishment and sentence for felonies. The rationale of the Georgia Supreme Court in Wade v. State, 231 Ga. 131, 134, 200 S.E.2d 271, construin...