Tant v. State
This text of 182 S.E.2d 502 (Tant v. State) 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.
Opinions
The appellants were charged with illegal possession of drugs and, upon conviction, appealed to the Supreme Court of Georgia, which court transferred the case to this court for review and decision. Held:
1. No constitutional questions relating to the validity of the Act under which appellants were convicted were properly raised in the court below (see Tant v. State, 226 Ga. 761 (177 SE2d 484)), and will therefore not be passed upon by this court on appeal. Bourn v. Herring, 225 Ga. 67 (166 SE2d 89); Harper v. Burgess, 225 Ga. 420 (169 SE2d 297).
2. The police officer, undercover agent here, did nothing to entice or trick or persuade the defendants to commit the crime of which they were charged and convicted within the ruling in [761]*761Mapp v. Ohio, 367 U. S. 643 (81 SC 1684, 6 LE2d 1081), but, on the contrary, the police officer was invited to attend the drug smoking party; nor was such officer, because he also held and smoked the pipe containing the drug, an accomplice within the meaning of the rule that a conviction of felony cannot rest upon the uncorroborated testimony of an accomplice.
3. (a) The evidence as to the prejudice and bias in the community related to a very small number of people and was based primarily upon news publicity, most of which was composed of articles written by one of the defendants in a college newspaper, a local newspaper item with the pictures of the defendants and a narrative of their arrest. The facts stated in the latter article were proven without contradiction on the trial. The evidence failed to show a "probability of unfairness” or a "reasonable likelihood” that a fair trial could not be obtained as applied in the ruling of Sheppard v. Maxwell, 384 U. S. 333 (86 SC 1507, 16 LE2d 600). Nor does the voir dire examination of jurors, some of whom had read such articles, show anything to the contrary.
(b) Nor did the trial court abuse its discretion in permitting a juror to serve who had read the local newspaper articles and had seen the pictures where such juror said that he "believed” he could serve without prejudice and could render a just verdict under the evidence.
4. The acceptance and holding of the pipe containing the drug for the purpose of smoking it, and doing so, is sufficient possession of the drug to authorize a conviction of the charge made, and it follows that the testimony of the officer that the defendants, when they took the pipe with the drug in it, took "possession,” was not a conclusion of the witness; nor would the requested charge to the jury that the State had failed to prove possession of the drug have been a proper one. The ruling in Graham v. State, 150 Ga. 411 (104 SE 248) that the proof of drunkenness is not proof of guilty possession of alcoholic beverages when it was no crime to consume such beverages is not controlling here. See in this connection Pierce v. State, 43 Ga. App. 435, 437 (159 SE 125) commenting upon the Graham case and the facts therein and Dukes v. State, 90 Ga. App. 50 (81 SE2d 864), [762]*762in which it was stated that "the gist of the ruling in [the Graham case] is to the effect that one cannot be convicted of possessing and controlling intoxicating whiskey on evidence that he was seen intoxicated.”
5. Enumerations of error not herein dealt with and not argued in the briefs of counsel will be considered as abandoned.
Judgments affirmed.
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Cite This Page — Counsel Stack
182 S.E.2d 502, 123 Ga. App. 760, 1971 Ga. App. LEXIS 1373, Counsel Stack Legal Research, https://law.counselstack.com/opinion/tant-v-state-gactapp-1971.