Marchman v. State

215 S.E.2d 467, 234 Ga. 40, 1975 Ga. LEXIS 1007

• Court: Supreme Court of Georgia
• Decided: March 4, 1975
• Docket: 29453
• Status: Published

Opinions

Undercofler, Presiding Justice.

On February 8, 1972, appellant was indicted and subsequently convicted of theft by taking a radio on January 20, 1972, described as "one Narvo Avionics, Mark 16 Nov/Com., Serial No. 11-FM7.” The proof showed the radio was a Narco. The Court of Appeals reversed the conviction because,"... the proof offered did not show that the stolen equipment was the same as that described in the indictment.” Marchman v. State, 129 Ga. App. 22, 24 (198 SE2d 425).

On June 18, 1973, appellant was reindicted and subsequently convicted of theft by taking on January 20, 1973, "one Mark 16 Narco aircraft radio with the number 11-FM7 stamped thereon.” Appellant filed a plea of former jeopardy. It was denied. The Court of Appeals affirmed holding in essence that on the first conviction, "... the variance was held fatal at the instance of the defendant. Thus, there was no trial on the merits and the defendant is not entitled to the protection of the jeopardy clause.” Marchman v. State, 132 Ga. App. 677 (209 SE2d 88). We granted certiorari.

We reverse. "The 1968 Georgia Criminal Code has expanded the proscription of double jeopardy beyond that provided for in the United States and Georgia Constitutions. . . The first policy underlying the double jeopardy bar is to prevent harassment of the accused by successive prosecutions.” State v. Estevez, 232 Ga. 316, 317, 318 (206 SE2d 475).

In keeping with this policy Code Ann. § 26-506 provides, "(b) If the several crimes arising from the same conduct are known to the proper prosecuting officer at the time of commencing the prosecution and are within the jurisdiction of a single court, they must be prosecuted in a single prosecution except as provided in subsection (c). (c) When two or more crimes are charged as required by subsection (b), the court in the interest of justice may order that one or more of such charges be tried separately.” Ga. L. 1968, pp. 1249, 1267. Under the facts of this case it is apparent that the crimes for which appellant has been prosecuted, if not the same, certainly arose out of the same conduct and were known to the prosecutor.

Argued January 19, 1975 Decided March 4, 1975 Rehearing denied March 25, 1975. Paul S. Weiner, for appellant. Ben J. Miller, District Attorney, Arthur K. Bolton, Attorney General, John W. Dunsmore, Jr., Assistant Attorney General, for appellee. Lewis R. Slaton, District Attorney, Hinson McAuliffe, Solicitor, Carter Goode, Assistant District Attorney, Charles T. Shean, III, Johnny R. Moore, amicus curiae.

The Court of Appeals reversed appellant’s first conviction because the evidence did not authorize the verdict. If the prosecution here on appeal is for the same crime for which appellant was previously prosecuted it is barred by Code Ann. § 26-507 (d) which provides, "A prosecution is not barred within the meaning of this section ... (2) if subsequent proceedings resulted in the invalidation, setting aside, reversing, or vacating of the conviction... unless there was a finding that the evidence did not authorize the verdict.” Ga. L. 1968, pp. 1249,1267. If the prosecution here is for a different crime it is barred by Code Ann. § 26-507 (b) which provides, "A prosecution is barred if the accused was formerly prosecuted for a different crime, or for the sáme crime based upon different facts, if such former prosecution (1) . . . was for a crime with which the accused should have been charged on the former prosecution (unless the court ordered a separate trial of such charge) . . .” Ga. L. 1968, pp. 1249, 1267.

Judgment reversed.

All the Justices concur, except Ingram, Hall and Hill, JJ., who dissent.