Tischmak v. State
This text of 211 S.E.2d 587 (Tischmak 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.
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The defendant was convicted under a two-count indictment. On the first count involving the sale of phencyclidine, the defendant was sentenced to one year based on the jury verdict. On the second count involving possession of less than one ounce of marijuana, the jury also found the defendant guilty. The trial judge in sentencing the defendant set the sentence under the second count at six months and provided the sentences were to run consecutively.
The defendant filed a motion for new trial and upon it being overruled appealed to this court. Held:
1. Counsel for the defendant contends that the trial judge erred in overruling the motion to quash the indictment because phencyclidine is not a drug prohibited by the Georgia Drug Abuse Control Act. Code Ann. Ch. 79A-9 (Ga. L. 1967, pp. 296, 343 (now repealed by Ga. L. 1974, p. 221 but in effect for this case)).
The Georgia Drug Abuse Control Act prohibits the sale of depressant or stimulant drugs as therein defined. Under the definitions within the Act, a depressant or stimulant drug is: "Any drug which contains any quantity of a substance designated by present regulations promulgated under the Federal Act as having potential for abuse because of its depressant or stimulant effect on the central nervous system or its hallucinogenic effect.” [535]*535Code Ann. § 79A-903 (b 3) (Ga. L. 1967, pp. 296, 344; 1970, pp. 470, 471). The Georgia Supreme Court in Johnston v. State, 227 Ga. 387 (2) (181 SE2d 42), held that this provision of the Act referred to the federal regulations promulgated under the Federal Act as of the time of the enactment of the Georgia law in 1967. An examination of such regulations reveals no prohibition against phencyclidine.
Code Ann. § 79A-903 (b 4) sets out: "Any substance which the State Board shall determine to be habit-forming because of its stimulant effect on the central nervous system or any drug which the State Board shall determine to contain any quantity of a substance having a potential for abuse because of its depressant or stimulant effect on the central nervous system or its hallucinogenic effect.” An examination of the regulations of the state board reveals that at the time of the commission of the act in question that the state board had found phencyclidine hydrochloride to be a depressant or stimulant drug within the meaning of the Act. Under the provisions of the Administrative Procedure Act, we take judicial notice of the rules promulgated by the State Board of Pharmacy. Code Ann. § 3A-108 (Ga. L. 1964, pp. 338, 346).
The indictment charges the defendant with the unlawful sale of phencyclidine. The evidence reveals from the testimony of one of the state’s witnesses that the substance found on the defendant was phencyclidine hydrochloride. In Ellis v. State, 132 Ga. App. 684 (209 SE2d 106), a majority of this court sanctioned testimony utilized on the trial of the case to prove that substances named in the indictment were drugs prohibited by Code Ann. § 79A-702 (Ga. L. 1967, pp. 296, 323; 1972, pp. 948, 949) and Code Ann. § 79A-802 (Ga. L. 1967, pp. 296, 325; 1970, p. 470 (now repealed by Ga. L. 1974, p. 221 but in effect for this case)). In view of the great similarity between these sections and Code Ann. § 79A-903, we hold that the indictment was sufficient to inform the defendant as to the nature of the crime with which he was charged and to sustain a conviction on proof such as here offered.
2. (a) "A question asked in the language of this Code section is in proper form to ascertain whether the juror is [536]*536competent or not in qualifying a jury in a felony case, and the use of the word 'crime’ in the statutory form of the question given by the Code is not objectionable on the ground that it assumes in advance that a crime has been committed.” Bloodworth v. State, 119 Ga. App. 677 (1) (168 SE2d 334).
(b) The record before us is not sufficient to sustain any of the attacks made on the composition of the grand or traverse jury. Garrett v. State, 133 Ga. App. 564 (— SE2d —). See Hill v. State, 232 Ga. 800, 804 (3) (209 SE2d 153).
(c) No error was committed in refusing to permit counsel to ask certain questions on voir dire.
3. On cross examination of the defendant, sworn as a witness, the following testimony was elicited: "Q. And you did sell her [the prosecution’s witness] some phencyclidine? A. PCP. Q. That’s what you call it. So you did sell it to her; is that right? A. Yes ... Q. And you did have this marihuana? A. Yes, sir. Q. It was where, in your pocket? A. Yes, sir ... Q. It [the indictment] says you, not being authorized under any provision of the Georgia Drug Control Act to do so, did distribute and sell to Jeannine Metevier phencyclidine. Did you do that? A. Yes, sir. Q. It also says that you had in your possession, not being authorized under any of the provisions of the Georgia Drug Abuse Control Act to do so, you had in your possession unlawfully marihuana in an amount of less than one ounce? A. Yes, sir. Q. And you are admitting your guilt under these two counts in the indictment; is that correct? A. Yes, sir.”
"A defendant’s admission in open court is an admission in judicio, and the fact therein stated may be taken as true without further proof. Dumas v. State, 62 Ga. 58.” Thaxton v. State, 89 Ga. App. 536, 538 (80 SE2d 76). See also Hargroves v. State, 179 Ga. 722 (4) (177 SE 561).
"Where in a criminal case not only the evidence but the defendant’s statement demanded the verdict rendered, a new trial will not be granted, even though the judge may have committed errors in his charge to the jury, in rulings on evidence, and in refusing to order a mistrial on account of improper argument of counsel. If the jury reached the only result which was legally possible in the [537]*537case, the judgment of the trial judge will not be reversed merely for the purpose of allowing the case to be heard again, in order that the same result may be more technically reached.” Robertson v. State, 95 Ga. App. 445, 447 (98 SE2d 199). See Williams v. State, 15 Ga. App. 311 (82 SE 817); Kennedy v. State, 51 Ga. App. 543 (181 SE 139); Pennington v. State, 117 Ga. App. 701, 704 (161 SE2d 327).
The evidence demanded a verdict of guilt on Counts 1 and 2 of the indictment and the judgment of conviction must be affirmed.
4. In this case the jury first found the defendant guilty and then set the sentence under the first count at one year and merely found the defendant guilty under the second count which was a misdemeanor. The Supreme Court has held: "If there are two or more convictions in a multi-count indictment, the jury must prescribe the sentence to be served on each count. And unless the jury specifies that the sentences imposed are to run consecutively, then the law (Code Ann. § 27-2510) is that they shall run concurrently... a trial judge does not have legal authority to say whether sentences imposed by a jury in a multi-count indictment shall run concurrently or consecutively. Under our present statutes that function is solely within the province of the jury.” Wade v. State, 231 Ga. 131, 134 (200 SE2d 271). See Gandy v. State, 232 Ga. 105 (205 SE2d 243).
The rule above cited is not decisive in the case sub judice because under Code Ann. § 27-2534 (Ga. L. 1970, pp. 949, 950) [now repealed by Ga. L. 1974, p. 352 but in effect for this case] the jury sets the sentence for felonies but not for misdemeanors.
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211 S.E.2d 587, 133 Ga. App. 534, 1974 Ga. App. LEXIS 1131, Counsel Stack Legal Research, https://law.counselstack.com/opinion/tischmak-v-state-gactapp-1974.