Brooks v. State

189 S.E.2d 448, 125 Ga. App. 867, 1972 Ga. App. LEXIS 1493

• Court: Court of Appeals of Georgia
• Decided: March 17, 1972
• Docket: 46834
• Status: Published

Opinions

Eberhardt, Judge.

Two members of the narcotics squad of the Atlanta metro police force made acquaintance with some girls who were used as entrees for making contacts with sellers of drugs. The officers expressed a desire to buy a pound of marijuana, and the girls took them to the apartment of defendant and his wife. He had none, but at the urging of the girls called several people in an attempt to locate marijuana for them. Defendant demurred somewhat, but finally he and his wife went with the girls and the officers to a location where defendant made a contact which produced substantially a pound of marijuana wrapped in a newspaper. It was to be obtained for $165, and $10 of the $175 supplied by the officers was returned. When the marijuana was produced the price was again reduced $10 because it was "trashy” and another $10 was refunded to the officers. Defendant and his wife kept none of the money but were prosecuted under Code Ann. § 26-801 for selling the marijuana and on trial of the case she was acquitted while he was convicted and sentenced to serve six months. He now appeals. Held:

1. The contention that defendant was entitled to an acquittal because he had acted as an agent of the purchasers in acquiring the marijuana is without merit. The same contention was made in Green v. State, 124 Ga. App. 469 (184 SE2d 194) under similar circumstances.

2. There was no entrapment. Allen v. State, 120 Ga. App. 533, 535 (171 SE2d 380).

3. In the charge to the jury the court informed the jury that the offense charged in the indictment was that of a violation of the Georgia Drug Abuse Control Act, and "the court charges you the law provides that it shall be unlawful for any person to possess or have under his control any narcotic drugs except as authorized” by the Act. There was no instruction as to a conviction or acquittal for the unlawful possession of drugs. But the indictment charged the defendant with the offense of selling one pound of marijuana to L. O. Webb; it did not charge unlawful possession.

There was explicit charge on the matter of selling: "The court charges you if you believe beyond a reasonable doubt . . . that the defendants did on the 3rd day of March, 1971, not being authorized under any provision of the Georgia Drug Abuse Control Act to do so, did unlawfully sell one pound of marijuana to L. O. Webb, then and in that event, you would be authorized to convict the defendants of the offense charged in this bill of indictment,” and that if they should have a reasonable doubt as to their guilt "of the offense charged in this bill of indictment, it would be your duty to give them the benefit of that doubt and to acquit them.” Throughout the charge there were references to the "offense as charged in this indictment.”

It is urged that the reference to possession in the charge was calculated to confuse the jury, but we do not agree. It would have been better to have omitted the reference, but upon a reading of the whole charge we can see no harm in it. There was never an indication or instruction that the jury might convict for unlawful possession, and the tenor of the whole charge was that they were being tried for selling marijuana in a specific quantity on a specific date to a specific party. The jury made no effort to deal with any other offense than that charged in the indictment.

"The intent and the reasonable construction of the charge was to inform them that the indictment charged selling and not possessing, and that their verdict must determine the defendant’s guilt or innocence of the charge of selling as alleged in the indictment, and not of the charge of possessing. The fact that the indictment charged selling only takes the case out of the rulings cited by the plaintiff in error. The defendant was not injured by the charge, and 'injury as well as error must be shown before a new trial will be granted.’” Christian v. State, 41 Ga. App. 565, 566 (153 SE 780).

4. For the reasons stated in Headnote 1 there was no error in denying a request to charge on a defense that the defendant had been a "procuring agent” for the officer.

5. There was no error in the charge on conspiracy. There was a definition of conspiracy and an instruction that it was for the jury to determine from all of the facts and circumstances, as shown by the evidence, whether one existed for the commission of the offense charged in the bill of indictment, and, if so, whether the defendants were parties thereto, and that if the jury should find no conspiracy, or, that one existed but that defendants were not parties thereto, they should disregard the charge on that subject. We think the evidence raised a factual issue as to whether there was a conspiracy, and of course if the jury should find it to have existed and that the defendant was a party to it, as they may very well have done, the law makes the acts of all parties the acts of each.

Argued January 4, 1972 Decided March 17, 1972 Rehearing denied March 31, 1972 Albert M. Horn, for appellant. Lewis R. Slaton, District Attorney, Carter Goode, Robert L. Ridley, Joel M. Feldman, for appellee.

6. The general grounds of the motion for new trial are without merit. We have dealt with the special grounds.

Judgment affirmed.

Bell, C. J., Jordan, P. J., Hall, P. J., Quillian and Clark, JJ., concur. Pannell, Deen and Evans, JJ., dissent.