Jordan, Presiding Judge.
On the ex parte verified petition of the District Attorney of the Atlanta Judicial Circuit and a supporting affidavit of one of his assistants, a judge of the Atlanta Judicial Circuit issued an investigative warrant and order dated March 13, 1970, to permit surveillance, including the use of recording devices, within specified areas of Fulton County for a period terminating at midnight, March 21, 1970, to obtain evidence relating to the offense of improperly influencing legislative action under Code Ann. § 26-2304 (b). The defendants contend that the trial judge erred in failing to sustain a motion to suppress because [672]*672the offense described under Code Ann. § 26-2304 (b) is not "bribery” as the word is used in 18 USCA 2516 (2) or Code Ann. § 26-3004.
The cited federal statute, enacted as a part of Title III of the Omnibus Crime Control and Safe Streets Act of 1968; P. L. 90-351; 82 Stat. 197, 217; 18 USC 2516 (2), provides that on application by a principal prosecuting attorney "to a State court judge of competent jurisdiction” the judge, in conformity with other provisions of the law and the applicable State statute, may authorize or approve "the interception of wire or oral communications by investigative or law enforcement officers” when the interception "may provide or has provided evidence ... of the offense of . . . bribery . . . or other crime dangerous to life, limb, or property, and punishable by imprisonment for more than one year, designated in any applicable State statute authorizing such interception.”
While the trial judge cited the applicable State law as "Section 26-2005, Georgia Code Annotated” the applicable law is Code Ann. § 26-3004 (c), which is substantially indentical to the statute which it superseded. Both refer to "any crime under the laws of this State, or the United States involving . . . bribery.” See and compare Ga. L. 1967, pp. 844, 847; 1968, pp. 1249, 1328.
In statutory enactments "ordinary signification shall be applied to all words, except words of art, or words connected with a particular trade or subject-matter, when they shall have the signification attached to them by experts in such trade, or with reference to such subject-matter.” Code § 102-102 (1). In ordinary signification "bribery” may mean an "act of influencing the action of another by corrupt inducement.” Merriam-Webster’s New International Dictionary (2d Ed.), Unabridged. A standard meaning as a legal word of art is somewhat broader to include "offering, giving, receiving, or soliciting of anything of value to influence action as [an] official or in discharge of [a] legal or public duty.” Black’s Law Dictionary (4th Ed.).
The only offense expressly designated as bribery under Georgia law is Code Ann. § 26-2301, covering one who "solicits” something for "the purpose of influencing” official action. In this sense it is obvious that the offense under § 26-2304 (b) covering one who "asks for” something "in return for an agreement to procure or [673]*673attempt to procure” legislative action is also a species of bribery, regardless of the label used by the General Assembly.
Accordingly, we conclude that Code Ann. § 26-2304 (b) is an offense coming within the provisions of 18 USC 2516 (2) and Code Ann. § 26-3004 (c).
In urging that electronic recordings obtained pursuant to the investigative warrant were erroneously admitted in evidence the defendants emphasize the fact that the recordings were not delivered immediately to the issuing judge. The warrant and order dated March 13, 1970, provided for "return hereof and report as required by law before me within thirty days of the date hereof.”
The applicable State statute requires a return and report within a maximum of 30 days of the issuance of the warrant. Code Ann. § 26-3004 (i). It appears that return was made on or about April 7, 1970, and within 30 days from the date of the order. The applicable federal provision requires that the recordings are to be made available to the judge issuing the order immediately upon the expiration of the period of the order and are to be sealed under his direction. 18 USC 2518 (8) (a). Evidence obtained in violation of any of the provisions of the State law is inadmissible, except to prove an unlawful surveillance or invasion of privacy. Code Ann. § 26-3007. But the penalty for a violation of the above stated requirements of the federal statute is limited to the contempt powers of the issuing judge. 18 USC 2518 (8) (c). Such a violation is not included in the allowable grounds of a motion to suppress. 18 USC 2518 (10).
The evidence was not inadmissible for any reason here argued.
In attacking the validity of the order authorizing the surveillance the defendants rely on Cross v. State, 225 Ga. 760 (171 SE2d 507); Burns v. State, 119 Ga. App. 678 (168 SE2d 786); and Fowler v. State, 121 Ga. App. 22 (172 SE2d 447). We have carefully examined these cases in the light of the order in this case and conclude that these cases afford no basis for a determination that the surveillance was improperly conducted by reason of any alleged deficiencies in the order or warrant and the supporting affidavit. A reading of the Cross case shows that it deals only with Chapter 119 of 18 USCA relating to the requirement for obtaining an order authorizing wire tapping and 18 USC 2518 (4) (e) and (5) [674]*674as to the requirements for the contents of such order. The facts in this case show clearly that an order was obtained as required and that the contents of such order met the requirements of both federal and state statutes, thus taking this case out of the holding in Cross.
The defendants contend that telephone messages intercepted preceding the surveillance order violated State and federal law, arguing that at the time there was no commission of a crime and that the messages were not in furtherance of a crime. It is undisputed that these recordings were made through devices placed in the office of one of the persons named in the indictment as a person from whom money had been and was being solicited, who expressly consented to the surveillance, and the evidence amply supports a conclusion that the messages were in furtherance of the commission of a crime.
Under Georgia law a permissible exception is recognized "in those instances wherein the message shall be initiated or instigated by a person and the message shall constitute the commission of a crime or is directly in the furtherance of a crime, provided at least one party thereto shall consent.” Code Ann. § 26-3006. The federal law includes similar exceptions. 18 USC 2511 (2) (c, d).
It is also contended that the evidence discloses that these recordings were "so inaudible and indistinct in many portions that would require, therefore, the jury to merely speculate as to what was said.”
The above contentions are without merit.
Free access — add to your briefcase to read the full text and ask questions with AI
Jordan, Presiding Judge.
On the ex parte verified petition of the District Attorney of the Atlanta Judicial Circuit and a supporting affidavit of one of his assistants, a judge of the Atlanta Judicial Circuit issued an investigative warrant and order dated March 13, 1970, to permit surveillance, including the use of recording devices, within specified areas of Fulton County for a period terminating at midnight, March 21, 1970, to obtain evidence relating to the offense of improperly influencing legislative action under Code Ann. § 26-2304 (b). The defendants contend that the trial judge erred in failing to sustain a motion to suppress because [672]*672the offense described under Code Ann. § 26-2304 (b) is not "bribery” as the word is used in 18 USCA 2516 (2) or Code Ann. § 26-3004.
The cited federal statute, enacted as a part of Title III of the Omnibus Crime Control and Safe Streets Act of 1968; P. L. 90-351; 82 Stat. 197, 217; 18 USC 2516 (2), provides that on application by a principal prosecuting attorney "to a State court judge of competent jurisdiction” the judge, in conformity with other provisions of the law and the applicable State statute, may authorize or approve "the interception of wire or oral communications by investigative or law enforcement officers” when the interception "may provide or has provided evidence ... of the offense of . . . bribery . . . or other crime dangerous to life, limb, or property, and punishable by imprisonment for more than one year, designated in any applicable State statute authorizing such interception.”
While the trial judge cited the applicable State law as "Section 26-2005, Georgia Code Annotated” the applicable law is Code Ann. § 26-3004 (c), which is substantially indentical to the statute which it superseded. Both refer to "any crime under the laws of this State, or the United States involving . . . bribery.” See and compare Ga. L. 1967, pp. 844, 847; 1968, pp. 1249, 1328.
In statutory enactments "ordinary signification shall be applied to all words, except words of art, or words connected with a particular trade or subject-matter, when they shall have the signification attached to them by experts in such trade, or with reference to such subject-matter.” Code § 102-102 (1). In ordinary signification "bribery” may mean an "act of influencing the action of another by corrupt inducement.” Merriam-Webster’s New International Dictionary (2d Ed.), Unabridged. A standard meaning as a legal word of art is somewhat broader to include "offering, giving, receiving, or soliciting of anything of value to influence action as [an] official or in discharge of [a] legal or public duty.” Black’s Law Dictionary (4th Ed.).
The only offense expressly designated as bribery under Georgia law is Code Ann. § 26-2301, covering one who "solicits” something for "the purpose of influencing” official action. In this sense it is obvious that the offense under § 26-2304 (b) covering one who "asks for” something "in return for an agreement to procure or [673]*673attempt to procure” legislative action is also a species of bribery, regardless of the label used by the General Assembly.
Accordingly, we conclude that Code Ann. § 26-2304 (b) is an offense coming within the provisions of 18 USC 2516 (2) and Code Ann. § 26-3004 (c).
In urging that electronic recordings obtained pursuant to the investigative warrant were erroneously admitted in evidence the defendants emphasize the fact that the recordings were not delivered immediately to the issuing judge. The warrant and order dated March 13, 1970, provided for "return hereof and report as required by law before me within thirty days of the date hereof.”
The applicable State statute requires a return and report within a maximum of 30 days of the issuance of the warrant. Code Ann. § 26-3004 (i). It appears that return was made on or about April 7, 1970, and within 30 days from the date of the order. The applicable federal provision requires that the recordings are to be made available to the judge issuing the order immediately upon the expiration of the period of the order and are to be sealed under his direction. 18 USC 2518 (8) (a). Evidence obtained in violation of any of the provisions of the State law is inadmissible, except to prove an unlawful surveillance or invasion of privacy. Code Ann. § 26-3007. But the penalty for a violation of the above stated requirements of the federal statute is limited to the contempt powers of the issuing judge. 18 USC 2518 (8) (c). Such a violation is not included in the allowable grounds of a motion to suppress. 18 USC 2518 (10).
The evidence was not inadmissible for any reason here argued.
In attacking the validity of the order authorizing the surveillance the defendants rely on Cross v. State, 225 Ga. 760 (171 SE2d 507); Burns v. State, 119 Ga. App. 678 (168 SE2d 786); and Fowler v. State, 121 Ga. App. 22 (172 SE2d 447). We have carefully examined these cases in the light of the order in this case and conclude that these cases afford no basis for a determination that the surveillance was improperly conducted by reason of any alleged deficiencies in the order or warrant and the supporting affidavit. A reading of the Cross case shows that it deals only with Chapter 119 of 18 USCA relating to the requirement for obtaining an order authorizing wire tapping and 18 USC 2518 (4) (e) and (5) [674]*674as to the requirements for the contents of such order. The facts in this case show clearly that an order was obtained as required and that the contents of such order met the requirements of both federal and state statutes, thus taking this case out of the holding in Cross.
The defendants contend that telephone messages intercepted preceding the surveillance order violated State and federal law, arguing that at the time there was no commission of a crime and that the messages were not in furtherance of a crime. It is undisputed that these recordings were made through devices placed in the office of one of the persons named in the indictment as a person from whom money had been and was being solicited, who expressly consented to the surveillance, and the evidence amply supports a conclusion that the messages were in furtherance of the commission of a crime.
Under Georgia law a permissible exception is recognized "in those instances wherein the message shall be initiated or instigated by a person and the message shall constitute the commission of a crime or is directly in the furtherance of a crime, provided at least one party thereto shall consent.” Code Ann. § 26-3006. The federal law includes similar exceptions. 18 USC 2511 (2) (c, d).
It is also contended that the evidence discloses that these recordings were "so inaudible and indistinct in many portions that would require, therefore, the jury to merely speculate as to what was said.”
The above contentions are without merit.
It is further asserted that the constitutional rights of the defendants were "violated when they were, by electronic surveillance, exposed to interrogation by law enforcement officers without being advised at that time that they would have the right to counsel, and unless counsel was present at the time of interrogation.” The argument is advanced on the theory that during the period of surveillance immediately before apprehension, with an arrest warrant already issued for one of the individuals, the individuals were already in a defendant stage of the proceedings. In our opinion the record and transcript makes it clear that at this stage they were merely suspects not in custody.
[675]*675The law enforcement officials were acting at the time pursuant to the surveillance order, and unless the laws authorizing the order supporting their actions are unconstitutional, and no such issues are before this court, there was no violation of any constitutional rights as here insisted upon.
The present case is not within the rulings of any of the landmark Supreme Court cases which the defendants cited, i.e., Nardone v. United States, 302 U. S. 379 (58 SC 275, 82 LE 314); Gideon v. Wainwright, 372 U. S. 335 (83 SC 792, 9 LE2d 799, 93 ALR2d 733); Massiah v. United States, 377 U. S. 201 (84 SC 1199, 12 LE2d 246); and Miranda v. Arizona, 384 U. S. 436 (86 SC 1602, 16 LE2d 694, 10 ALR3d 974).
Obviously none of these cases involves suspects not in custody, or discloses any ruling which we consider applicable to suspects not in custody as disclosed in the present case.
The trial judge overruled motions, at the close of the State’s evidence, and at the close of all of the evidence, to require the State to elect which of the two counts it would proceed upon. In our opinion the rulings as made involved the exercise of a sound discretion by the trial judge, and nothing appears to disclose any abuse of this discretion. See Pippin v. State, 205 Ga. 316 (5) (53 SE2d 482); Sutton v. State, 124 Ga. 815 (53 SE 381); Lascelles v. State, 90 Ga. 347 (16 SE 945, 35 ASR 216); Stewart v. State, 58 Ga. 577; Hoskins v. State, 11 Ga. 92; Webb v. State, 47 Ga. App. 505 (170 SE 827).
Finally, we reach the contention that the verdicts of not guilty of Count 1 and guilty of Count 2 are repugnant and inconsistent. Obviously the indictment purports to allege aspects of the same conduct to state two offenses based on the same transaction, the first under Code Ann. § 26-2301 (2) and the second under Code Ann. § 26-2304 (b).
The meaning of the offense set forth in Code Ann. § 26-2301 (2) is dependent upon the language of Code Ann. § 26-2301 (1) with respect to the purpose for which the person "solicits or receives” and is thus restricted to "influencing him in the performance of any act related to the functions of his office or employment” (emphasis supplied) whereas the purpose under § 26-2304 (b) is "an agreement to procure or attempt to procure the passage or defeat [676]*676the passage of any legislation” which includes solicitation for the sale of influence by the perpetrating officer or employee, who might or might not be a member of the legislative body, on others, members of the legislative body, to assure the passage or defeat of legislation. Thus to the extent that it is alleged under Count 1 that Petree, with Ansley as his abettor, solicited the sale of his own vote as a member of the legislative body, the alleged transaction is an offense under Code Ann. § 26-2301 (2), but should it appear that the solicitation was for an agreement, expressed or implied, to procure or attempt to procure the passage or defeat of legislation, it involves the attempted sale of his influence on other members of the legislative body, and comes under Code Ann. § 26-2304 (b). In brief, we see a distinction in accusing Petree, in conjunction with Ansley, of soliciting the sale of his own vote, and in accusing him, in conjunction with another, of soliciting the sale of his influence in procuring favorable legislative action, which might or might not include his own vote. Thus, from the standpoint of conviction and acquittal, an acquittal under Count 1 of the indictment as alleged is not, as a matter of law, inconsistent and repugnant to a simultaneous conviction under Count 2. Accordingly, the rule in Kuck v. State, 149 Ga. 191 (99 SE 622), and similar cases is inapplicable to the present case. See Blair v. State, 81 Ga. 629 (7 SE 855).
We recognize further that the trial judge, having refused to require the State to elect upon which count it would proceed, acted favorably to the defendants in requiring the jury in the event of a finding of guilt on one count, to acquit on the other. Even if two separate offenses were alleged, for reasons already stated, the action of the trial judge is consonant with the guidelines stated in Code Ann. § 26-506 (a) which protect an accused from a conviction "of more than one crime if (1) one crime is included in the other, or (2) the crimes differ only in that one is defined to prohibit a designated kind of conduct generally and the other to prohibit a specific instance of such conduct.”
We find no error for any reason enumerated and each judgment is affirmed.
Bell, C. J., Hall, P. J., Eberhardt, Deen, Quillian and Whitman, JJ., concur. Pannell, J., concurs in the judgment. Evans, J., dissents.