Sturgis v. State

195 S.E.2d 682, 128 Ga. App. 85, 1973 Ga. App. LEXIS 1400

• Court: Court of Appeals of Georgia
• Decided: January 11, 1973
• Docket: 47528
• Status: Published

Opinions

Evans, Judge.

The defendant was indicted, tried and convicted of two counts involving the violation of the Uniform Narcotic Drug Act. Count 1 involved the unlawful possession of heroin. Count 2 involved the sale of heroin. The indictment alleges that both of these violations occurred on the same date. Defendant was also indicted, tried and convicted of two counts of misdemeanor, i. e., (1) carrying a pistol without a license and (2) carrying a concealed weapon. He received sentences of two years and six years to run consecutively as to the felonies. He likewise received a sentence of 12 months on each of the misdemeanors, running concurrently with each other, but said 12 months to follow the sentences in the felony convictions. The appeal is from his conviction and sentence and from the order denying his motion for new trial as amended. Held:

1. Defendant contends the court erred in attempting to charge the substance of Code Ann. § 26-506 (New Criminal Code, Ga. L. 1968, pp. 1249, 1267) in that it was erroneous, misleading, prejudicial and in conflict with the statute. This is the sum and substance of the argument. At no place in the brief has it been pointed out where, in the charge, this alleged excerpt occurred. We deem this complaint to be abandoned by reason of the failure to properly argue this enumeration of error and in failing to follow Rule 18 as to structure and content. Bode v. Northeast Realty Co., 117 Ga. App. 226 (1) (160 SE2d 228); Askew v. State, 117 Ga. App. 647 (1) (161 SE2d 445); Hall v. State, 117 Ga. App. 649 (1) (161 SE2d 374).

2. Code Ann. § 26-506 provides: "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.” (Emphasis supplied.) The indictment shows the offenses allegedly took place on the same date. The evidence conclusively shows that the defendant’s arrest arose out of a single transaction. Thus, the defendant’s conviction of the offense of illegally selling and distributing heroin necessarily included the offense of possessing heroin. It was proper to indict for both offenses and to try both offenses together under the above statute, but the court erred in allowing a conviction on both counts, and erred in his charge to the jury in respect thereto. See Wells v. State, 126 Ga. App. 130 (2) (190 SE2d 106); Benton v. Maryland, 395 U. S. 784 (3, 4) (89 SC 2056, 23 LE2d 707); Price v. Georgia, 398 U. S. 323 (90 SC 1757, 26 LE2d 300). The above Federal decisions hold that the greater crime included the lesser offense, and that the double jeopardy prohibition of the Federal Constitution is likewise applicable to the states.

This decision is not in conflict with the decision of the Supreme Court in Gee v. State, 225 Ga. 669 (171 SE2d 291), in which both the date of the offense (November 21, 1968) and the trial of the case (March 19, 1969) occurred prior to the effective date of the Criminal Code of Georgia (Ga. L. 1968, pp. 1249, 1267). Consequently, the decision rendered in Thompkins v. State, 126 Ga. App. 683 (191 SE2d 555), which relies on Gee v. State, supra, is erroneous and is specifically overruled.

Submitted September 7, 1972 — Decided January 11, 1973 — Rehearing denied February 6, 1973. Glenn Zell, for appellant. Lewis R. Slaton, District Attorney, Morris H. Rosenberg, Joel M. Feldman, Carter Goode, for appellee.

Judgment reversed.

Bell, C. J, Quillian, Clark and Stolz, JJ. concur. Hall, P. J., Eberhardt, P. J., Pannell and Deen, JJ., dissent.