Green v. State

317 S.E.2d 609, 170 Ga. App. 594, 1984 Ga. App. LEXIS 1957

• Court: Court of Appeals of Georgia
• Decided: March 14, 1984
• Docket: 67502
• Status: Published

Opinions

Shulman, Presiding Judge.

Appellants were convicted of aggravated assault upon a peace officer and mutiny in a penal institution. The appeal of the third defendant can be found in Chitwood v. State, 170 Ga. App. 599 (317 SE2d 589).

1. Appellants maintain that the trial court erroneously denied their motion to dismiss the aggravated assault charge. In that pretrial motion, appellants contended that the offense of aggravated assault was precluded because it merged into the mutiny charge.

The trial court’s denial of the motion was not error. OCGA § 16-1-7 (a) permits the state to prosecute an individual for each crime his conduct established. It is the conviction of more than one crime established by the same conduct that § 16-1-7 (a) forbids and, at the time appellants sought the dismissal of the aggravated assault, they had not yet been convicted of more than one crime established by the same conduct. Pryor v. State, 238 Ga. 698, 700 (234 SE2d 918). Thus, the motion was properly denied.

2. As mentioned above, OCGA § 16-1-7 (a) prohibits an individual’s conviction and punishment for multiple offenses arising from the same criminal conduct: “When the same conduct of an accused may establish the commission of more than one crime, the accused may be prosecuted for each crime. He may not, however, be convicted 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.” The above statute is the codification of the substantive aspect of the double jeopardy principle in that it relates to the penalty for criminal conduct as distinguished from the procedural aspects of successive prosecutions. State v. Estevez, 232 Ga. 316, 319 (1) (206 SE2d 475). “[A] crime is an included crime and multiple punishment therefor is barred if it is the same as a matter of fact or as a matter of law . . .” Id. OCGA § 16-1-6 defines an included crime as one “established by proof of the same or less than all the facts . . . required to establish the commission of the [greater] crime charged.” Turning to the elements of the convictions involved herein, we note that mutiny is committed when “[a] person in the lawful custody of any penal institution . . . assails, opposes, or resists an officer of the law or of such penal institution or a member of the guard with intent to cause serious bodily injury . . .” OCGA § 16-10-54. Aggravated assault upon a peace officer occurs when a peace officer, engaged in or on account of the performance of his official duties, is assaulted by one with intent to murder, rape or rob or with a deadly weapon. OCGA § 16-5-21. A comparison of the elements of the above offenses reveals that a conviction for mutiny requires proof of one element that is not necessary for the aggravated assault conviction, i.e., proof that the perpetrator is a person in the lawful custody of a penal institution. Therefore, under the statutory definition of included offense, aggravated assault upon a peace officer merges into the mutiny conviction because the aggravated assault charge “is established by proof of . . . less than all the facts . . . required to establish the commission of [mutiny].” OCGA § 16-1-6. See Brown v. State, 247 Ga. 298 (9) (275 SE2d 52), overruled on other grounds in Wilson v. Zant, 249 Ga. 373 (2) (290 SE2d 442).

Thus, the facts adduced to support the aggravated assault charge, as it was set forth in the indictment, were the same facts used to support the mutiny charge, as it was set forth in the indictment. Under these circumstances, the aggravated assault charge must be considered an offense included within the mutiny charge pursuant to OCGA § 16-1-6 (a). Since OCGA § 16-1-7 (a) forbids the conviction of appellants for both crimes, the conviction for the included offense, aggravated assault, must be vacated.

Judgments affirmed as to mutiny. Judgments vacated as to aggravated assault.

Quillian, P. J., Banke and Birdsong, JJ., concur. Deen, P. J., and Banke, J., concur specially. McMurray, C. J., Carley, Sognier, and Pope, JJ., dissent. Decided March 14, 1984 — Rehearing denied March 30, 1984 — Millard L. Biloon, J. Robert Daniel, for appellants. Willis B. Sparks III, District Attorney, Thomas J. Matthews, Vernon R. Beinke, Assistant District Attorneys, for appellee.