State v. Freeman

Court of Appeals of Georgia

State v. Freeman

382 S.E.2d 664, 191 Ga. App. 541, 1989 Ga. App. LEXIS 725, 1989 WL 100785

CourtCourt of Appeals of Georgia

DecidedMay 11, 1989

DocketA89A0395

StatusPublished

Cited by1 cases

This text of 382 S.E.2d 664 (State v. Freeman) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

State v. Freeman, 382 S.E.2d 664, 191 Ga. App. 541, 1989 Ga. App. LEXIS 725, 1989 WL 100785 (Ga. Ct. App. 1989).

Pincite

Opinion

Benham, Judge.

This is an appeal by the State from an order dismissing one count of an indictment. Among other offenses, appellee was indicted for trafficking in cocaine. The indictment tracked the statute and alleged that appellee was in actual possession of the cocaine. See OCGA § 16-13-31, prior to the 1988 amendment. Appellee filed a demurrer which the trial court treated as a plea in abatement. In the pertinent portion of that pleading, appellee contended that he was only in constructive possession of the contraband. The parties stipulated that the trial court could consider the evidence adduced at the hearing on the motion to suppress, and the trial court found that appellee was, indeed, only in constructive possession of the cocaine.

“While such an allegation [, that appellee was only in constructive possession of the cocaine, as opposed to actual possession,] might have been the basis for a valid defense to the [trafficking charge], if it could have been proven, it does not point to any defect in the indictment itself. Therefore, it does not constitute a valid basis for a plea in abatement.” Callahan v. State, 148 Ga. App. 555 (2) (251 SE2d 790) (1978). That being so, the trial court erred in dismissing the trafficking count of the indictment returned against appellee.

Judgment reversed.

Deen, P. J., and Birdsong, J., concur. [542]*542Decided May 11, 1989. Robert E. Keller, District Attorney, Albert B. Collier, Assistant District Attorney, for appellant. Brooks S. Franklin, for appellee.

Free access — add to your briefcase to read the full text and ask questions with AI

Benham, Judge.

This is an appeal by the State from an order dismissing one count of an indictment. Among other offenses, appellee was indicted for trafficking in cocaine. The indictment tracked the statute and alleged that appellee was in actual possession of the cocaine. See OCGA § 16-13-31, prior to the 1988 amendment. Appellee filed a demurrer which the trial court treated as a plea in abatement. In the pertinent portion of that pleading, appellee contended that he was only in constructive possession of the contraband. The parties stipulated that the trial court could consider the evidence adduced at the hearing on the motion to suppress, and the trial court found that appellee was, indeed, only in constructive possession of the cocaine.

“While such an allegation [, that appellee was only in constructive possession of the cocaine, as opposed to actual possession,] might have been the basis for a valid defense to the [trafficking charge], if it could have been proven, it does not point to any defect in the indictment itself. Therefore, it does not constitute a valid basis for a plea in abatement.” Callahan v. State, 148 Ga. App. 555 (2) (251 SE2d 790) (1978). That being so, the trial court erred in dismissing the trafficking count of the indictment returned against appellee.

Judgment reversed.

Deen, P. J., and Birdsong, J., concur. [542]*542Decided May 11, 1989. Robert E. Keller, District Attorney, Albert B. Collier, Assistant District Attorney, for appellant. Brooks S. Franklin, for appellee.

Cite This Page — Counsel Stack

Bluebook (online)

382 S.E.2d 664, 191 Ga. App. 541, 1989 Ga. App. LEXIS 725, 1989 WL 100785, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-freeman-gactapp-1989.

Opinion

Related

Cite This Page — Counsel Stack