*1 vеrdict, properly the motion withstanding overruled general grounds. new trial Overruling follows: 1. of error are as enumerations other 2; amended, entirety 2. trial, its Error in new
motion for —No. in negligence specifications refusing in to eliminate certain 4, 5, 7; refusing charge charging thereon —Numbers requests charge written failing certain 3. Error —Numbers 10; jury was no evi- charge when there 4. Error 9 and 16; 12, 13, 14, 5. 15 and Error support dence to same—Numbers 11; jury Il- presence of 6. allowing law in counsel read —No. 17; testimony by expert 7. Error legal admission —No. allowing ruling evidence there- pleadings, as certain on effect of 18; under, during allowing 8. Exclu- amendment trial —No. part gestae 19. evidence as a res sion of certain —No. find enumerations and no error I considered each of these have Therefore, I would affirm the trial court and allow therein. verdict to stand. v. THE
46215. ANSLEY STATE. THE
46216. PETREE v. STATE. *2 Argued May 6, September 27, 197 1 Decided Rehearing 22, denied October 197 1 Palmour, Cook, Bobby Shulman, Cook & Lee Alembik & Rosenbluth, Shulman, appellants. for Arnold Slaton, Attorney, Goode,
Lewis R. District Carter J. Melvin En- gland, Feldman, appellee. Joel M.
Jordan, Presiding Judge. parte petition On the verified ex Attorney District the Atlanta sup Judicial Circuit and a porting assistants, judge affidavit of one of his a of the Atlanta Judicial an investigative Circuit issued warrant and order dated 13, 1970, permit surveillance, March including use re devices, cording specified County within pe areas of Fulton for a terminating midnight, riod at March to obtain evidence relating improperly influencing legislative to the offense of action (b). under Code Ann. 26-2304 The defendants contend § that the judge failing trial erred in suppress to sustain a motion to because (b) 26-2304 Ann. under Code described
the offense Ann. or Code "bribery” USCA 2516 is used word 26-3004. statute, III part of Title enacted as federal The cited 1968; P. L. 90- Act and Safe Streets Crime Control Omnibus (2), applica- 217; provides that on 351; USC 2516 Stat. judge of attorney court "to a State prosecuting principal tion conformity provi- with other judge, in competent jurisdiction” the statute, may or authorize applicable law and State sions of the by inves- interception wire or oral communications approve "the "may interception officers” when tigative law enforcement or bribery . . of . provided ... of the offense provide has evidence or life, limb, property, pun- dangerous to crime . . . or other year, designated in by imprisonment than one for more ishable authorizing interception.” such statute applicable State applicable law as "Section the trial cited While applicable Ann. 26-2005, Georgia law is Code Annotated” the Code *3 (c), substantially indentical statute which is 26-3004 § "any of superseded. refer crime under laws Both which it bribery.” . . involving . See or the United States 1968, 1249, 844, 1967, 847; pp. pp. 1328. compare L.Ga. statutory "ordinary signification applied shall In enactments art, words, partic- with a except words connected all words of or they signifiсa- subject-matter, when shall have or ular trade trade, by experts in or with reference to them such tion attached (1). ordinary signifi- In subject-matter.” 102-102 Code § such influencing of "bribery” may of the action mean an "act cation New Interna- by corrupt Merriam-Webster’s inducement.” another (2d Ed.), meaning A as a Dictionary Unabridged. standard tional "offering, giving, to include legal somewhat broader word of art is influence action as soliciting anything of value to receiving, or of duty.” legal public Black’s discharge [a] of or [an] official or in Ed.). (4th Dictionary Law bribery Georgia designated under expressly
The offense as something 26-2301, covering one "solicits” Ann. who is law Code § influencing” In it is action. this sense purpose of official for "the (b) covering one who 26-2304 the offense obvious § procure agreement something for an "in return "asks for” bribery, species of is also legislative action procure” Assembly. by the General regardless the label used of (b) 26-2304 Ann. that Code Acсordingly, § we conclude Code provisions of 18 USC coming within offense (c). 26-3004 Ann. § pursuant recordings obtained urging that electronic
In erroneously evidence admitted investigative warrant recordings were not deliv that the emphasize the fact and order issuing judge. The warrant immediately to the ered report 1970, "return hereof provided for dated March thirty days the date hereof.” of me within required law before report within requires a return and applicable State statute Code Ann. of the warrant. days the issuance a maximum of (i). April made on or about appears return was It 26-3004 applica- the order. The days the date of from and within 30 recordings are to be made requires provision federal ble immediately upon the ex- issuing order available to the under his and are to be sealed piration period of the order of the (a). in violation Evidence obtained direction. 18 USC inadmissible, except to any provisions law is privacy. Code Ann. prove or invasion an unlawful surveillance re- of the above stated penalty But the for a violation 26-3007. contempt pow- limited to the quirements the federal statute (8) (c). issuing judge. Such violation 18 USC 2518 ers suppress. 18 grounds of a motion to included in the allowable (10). USC argued. reason here not inadmissible
The evidence was authorizing attacking validity the order the surveil rely on Cross v. lance the defendants 786); 507); App. 678 SE2d Burns v. *4 447). App. 22 We have care Fowler light fully of the order this case examined these cases a determination no basis for conclude that these cases afford by improperly conducted reason that surveillance supporting warrant and the alleged in the order or deficiencies that it deals with reading the Cross case shows affidavit. A requirement obtaining relating Chapter 119 of 18 USCA (4) (e) and authorizing tapping and 18 USC 2518 wire an order requirements as to the for the contents of such order. The facts clearly required this case show that аn order was obtained as requirements that the met contents such order of both fed- statutes, taking eral and holding state thus this case out of the Cross. telephone messages intercepted
The defendants contend that preceding law, the surveillance order violated federal arguing that at the time there nowas commission of a crime and messages that the were not in furtherance of a crime. It is undis puted recordings through placed that these were made devices persons the officeof one of the named in per the indictment aas money solicited, from being son whom had been and was who ex pressly surveillance, consented to the and the amply evidence supports messages a conclusion that were in furtherance of the commission of a crime. Georgia permissible
Under law exception recognized a "in those message instances wherein the shall be initiated or insti- gated by person message and the shall constitute the commis- directly sion of a crime or crime, in the furtherance of a provided party at least one thereto shall consent.” Code Ann. 26-§ 3006. The federal law exceptions. includes similar 18 USC 2511 d). (c,
It is also contended evidence discloses that these re- cordings were many "so inaudible and portions indistinct in require, therefore, jury would merely speculate toas what was said.”
The above contentions are without merit.
It is further rights asserted that the constitutional were, defendants were they "violated when electronic surveil lance, exposed interrogation by law enforcement officerswithout being they advised at that time that right would have the to coun sel, and present unless counsel was at the interrogation.” time of argument theory during advanced on the period immediately surveillance apprehension, before with an arrest war already rant individuals, issued for one of the individuals already were stage proceedings. defendаnt opin In our ion the transcript record and stage makes clear that at they merely suspects custody. not in
675
acting
law
pursuant
The
enforcement officials were
at the time
order,
authorizing
to the surveillance
and unless the laws
the or-
supporting
unconstitutional,
der
their actions are
and no such is-
court,
are
any
sues
before this
there was no violation of
rights
upon.
here
constitutional
insisted
present
rulings
any
The
case
not within
of the land-
cited,
Supreme
i.e.,
mark
Court cases which the defendants
Nar-
(58
States,
275,
314);
done v. United
The trial
overruled
at the close of the State’s
evidence,
evidence,
and at
require
the close of all of the
State to elect which
proceed
of the two
upon.
counts would
opinion
rulings
our
as made involved the exercise of a sound
by
discretion
judge,
nothing
the trial
appears
any
to disclose
(5) (53
Pippin
State,
abuse of this discretion. See
Finally, we reach the contention that the verdicts of not guilty guilty repugnant Count 1 and of Count 2 are and incon Obviously purports allege sistent. the indictment aspects of the same conduct to transaction, state two offenses based on the same (2) the first under Ann. Code 26-2301 and the second under § Code (b). Ann. 26-2304 § meaning of the offense set forth in Code Ann. 26-2301 § dependent upon language of Code Ann. 26-2301 with
respect purpose person for which the "solicits or receives” "influencing performance and is thus restricted to him in the any (em- act related to the employment” functions of his office or (b) phasis supplied) purpose whereas under 26-2304 is "an agreement procure procure passage or or dеfeat for the legislation” which includes solicitation passage of employee, perpetrating or who officer of influence
sale body, legislative might oth might not be a member body, passage or ers, de legislative assure members alleged legislation. to the extent Thus feat *6 abettor, Petree, Ansley the his solicited sale with as 1 that Count body, legislative alleged the the vote as a member of of his own (2), under Code Ann. 26-2301 but is an offense transaction agreement, appear was for an ex that the solicitation should passage the implied, procure procure or or or pressed legislation, attempted the sale of his influence it involves defeat of body, legislative under Code members of and comes other on (b). accusing brief, a in Pe 26-2304 we see distinction Ann. § tree, conjunction Ansley, soliciting of his in with the sale own another, vote, him, conjunction accusing in of solicit and in with legislative procuring ing of his influence in favоrable ac the sale Thus, tion, might might include vote. or his own from which acquittal, acquittal standpoint of conviction and not, law, alleged a matter 1 of indictment as as Count repugnant to a conviction under inconsistent and simultaneous Accordingly, in Kuck 2. the rule v. Count inapplicable present case. and similar See cases SE 855). Blair having recognize judge, trial further refused to We proceed, require upon which it would the State to elect count jury favorably requiring in defendants acted count, finding acquit guilt on one on other. event of separate alleged, already if for reasons Even two offenses stated, guide- judge with the the action the trial consonant (a) protect in Code Ann. 26-506 which an accused lines stated if one crime is in- a conviction "of more than one crime from other, only in the crimes differ that one is cluded prohibit designated generally kind of and the defined to conduct specific prohibit a of such cоnduct.” instance other judgment error enumerated and each no reason We for find Bell, J., Eberhardt, Deen, Quillian J., Hall, C. P. is affirmed. JJ., Pannell, J., judgment. Evans, Whitman, concur. concurs in the J., dissents. Petree, Sr., Judge, dissenting. Richard A. an Alderman
Evans, Atlanta, City Benjamin Hugh Ansley, were tried bribery counts, under an indictment two in each of which charged principal charged Ansley Petree was and it was intentionally principal. jury "did aid and abet” said returned guilty a verdict of not as to Count and returned a verdict of guilty as to Count 2. trial,
During timely require defendants made motions to rely on, contending State to elect as to which count it would there legal counts, could be no conviction on both as each transaction thing count, that, effect, was the same in each the indict- charging ment thing against was the same defendants twice. The judge motions, instead, trial charged overruled the aforesaid but jury counts, could not be convicted on both defendants count, acquit convicted either on thе other. The trial if agreed seems to thus have with their contention require upon ground and motion to an election that the same charged count, offense each albeit he overruled their mo- *7 tions. Supreme
The Appeals repeatedly Court and Court of have held that a repugnancy absurdity verdict which creates or is not a good verdict. Illustrative are those cases where in one count de charged fendant illegally possessing whiskey with and in an charged illegally selling whiskey. other count is with juries Where acquitted have possessing whiskey the defendant of the and have selling whiskey, convicted him of repugnancy. this is a It is ob it, possess vious that if he did not State, he did not sell it. Kuck v. (1) (99 (and 622) 192-193); pp. SE see discussion at (78 State, 261); App. State, Holder v. 88 Ga. 859 SE2d Smith v. 38 (143 925); (157 App. State, 366 App. SE Davis v. 43 Ga. 122 888); 791); App. SE Britt v. Colley 36 Ga. 668 (2) (143 59); App. 111 Ga. 756 Finch v. SE2d 121). App. 426 important question
1. The first here is as to whether there was charges difference between the in Count 1 and Count 2 of the indictment, not, if repugnanсy, the verdict indeed does create a contend. charged unlawfully
Count 1 the accused solicited from 678 Prop- Crist, Jr., Company, Beck and The Southeast F. The
James $30,000 Consultants, Inc., aider- erty to influence Petree as such man, and obtain vote to secure ". his his . . to use influence pending Board of passage zoning petition before the of a then zoning City ordi- of Atlanta to amend Aldermen nance. . unlawfully F. James charged the accused did ask
Count Jr., Crist, Company, Property Con- and The Southeast The Beck sultants, $30,000 pro- agreement to ". . . for an Inc. for passage legislation Board of Aldermen of before the cure subdivision, Atlanta, body politicial City legislative of said zoning petition pending then said Board of Aider- to wit: A before Zoning . .” Ordinance. men amend the count, exactly property the same in each involved being County, Georgia, at cor- nine in Fulton the northwest acres Drive; change to Highway 75 Northside ner of Interstate accomplished zoning alleged be the ordinance was (resi- count, change property R-4 in each to wit: said from same dential) (offlce-institutional-conditional). to O-I-D study two between
A careful counts reveals difference between "tweedledee and Count and Count difference alleged 1 it is Petree was tweedledum.” In Count to "use his-influ- alleges Count 2 Petree would ence and obtain his vote”—while passage legislation” "attempt procure both —and object accomplished, for the exactly the same was to be counts money, people. sum from same same case, precluded posture defendants were from Under acquit, jeopardy, judica- filing plea or former or res of autrefois ta, jury tried at the as both and submitted counts charges separate made time. been indict- If these had election, ments, compelled if after one trial had *8 tried, right have had the to file been defendants then would had jeopardy, al- plea etc. Nor the defendants of former such using against objecting the same evidence the benefit of lowed twice, charged as have been for the transaction would them same separate right charges had made in indictments if the been their compelled an election. if the trial had or only Thus, filing pleas, the could such defendants instead of 679 protect by against onslaught filing themselves their double require motions the State to elect as to which count it would proceed upon. advantage It definite is a to the State and a disad- vantage to a defendant to have than count in more one an indict- ment, jurors prone compromise, because are human and deciding against for the defendant on one count and him an- on count, whereas, contend, other actually there them, against one charge though transaction and one it was appear jury into divided two counts so as to two charges. course, elementary
Of it is that where an liti- issue has been gated parties, between all matters involved therein are settled subject litigation parties. to fresh between same Walker v. (76 State, 762); State, App. 12 Ga. App. 91 SE Dickerson 91 v. Ga. (85 (2) (134 782); State, App. 453 v. SE2d Cash 108 Ga. 656 SE2d 524). (65 Gray State, In 6 App. v. Ga. SE it held: "Where several indictments for the same pending offense are against person, it upon is immaterial which he first acquitted tried. Whenever been upon any he has or convicted one them, plead acquittal of he can such or conviction bar aof (45 prosecution on Irwin v. others. 48).” (Emphasis supplied). SE effect,
To the same App. see Hurst v. 78); 530). Pope App. charge ques- Do both counts same offense? can There be no majority opinion clearly tion about it. The proceeds under mis- apprehension language counts, urges used two vote, that Count 1 relates to Petree’s while Count use relates to quote majority oрinion: his We from the "Thus to influence. Petree, alleged extent that it Ansley under Count 1 that with abettor, as his the sale his solicited own vote as a member legislative body, alleged an transaction is offense under (2), appear Code Ann. 26-2301 but should that the solicitation agreement, expressed implied, was for procure or procure passage legislation, or defeat of involves the at- tempted sale his legislative other members influence (b). body, brief, Code comes under Ann. 26-2304 we see Petree, accusing conjunction Ansley, distinction with of solic- *9 him, conjunction vote, in accusing and in iting the his own sale of procuring in another, soliciting sale his of with of influence might his might not include own legislation which favorable to a differ- And, majority opinion labors show although the vote.” 2, a actually its statement shows Counts and ence between "influence,” are al- both which and between "vote” difference of alleges pertinent repeat in leged thаt Count 1 1. We Count . .” What dif- and his vote . ". use obtain part: . . To his influence money soliciting to "use city a alderman ference is there between legislation, as passage of vote” for influence and obtain his his 1, agreement to binding to "an himself Count and his used in Count 2? passage legislation” as used attempt procure the of use "his influence” possibly it that Petree did not be said Could 1, alleged yet pass legislation, in Count but as "vote” to and legislation” procure passage as "attempt he of did alleged in Count 2? angle question a different approaches the from counsel
State’s urges opinion, in its brief: "There is majority and than does the finding by jury nothing a that a defendant in a inconsistent by passage legislation of agreed procure the for a consideration to legislative body member and at the municipal of which he was a a for simply agree to vote the measure time that he did not same logic If Petree is reverse. use his influence оn others.” This and money legislation, yet not procure passage did agreed for of surely end, pay those who were his vote or influence use complain in the loudest money reason to would have had though voting keep bargain illegal he tones. Could be— — against against using his the measure the measure and influence time, procure did, attempt to yet that he at same contend suggest legislation? did not passage To even Petree of alleged time he did do what and at do Count he alleged face. Could have in Count is absurd its what measure, said, my passage of "I for the this did not use influence it, procure passage attempt I did vote but I did not procure- Pray tell, he do to legislation!” what could passage using and influence in behalf without his vote ment jury declares when passage? this what the verdict of But "guilty” on 2. says guilty” "not Count on Count definitely Count established guilty” "not verdict of money soliciting from the guilty that the defendants Petree, city aider- partiеs, to influence the actions named passage vote to secure and obtain his man use his influence "to. zoning petition.” *10 court, verdict, in in same a in the jury, the same The same to the defendants as the same proceeding the State and between 2, "guilty” transaction, under Count a verdict of returned finding saying opposed in Count diametrically which was money the same sum of thereby did solicit these defendants Petree, ‘of influence the actions parties named to from the same pas- attempt procure the agreement to to city "for an a alderman legislation). Can there be sage legislation, (being the same etc.” any question repugnancy? toas Petree, you agree effect, not saying: "Mr. did to jury, in
The you legislation for this did your use influence and to vote —but legislation.” attempt procure passage of this And agree to to contention, clearly the had shown the even if evidence State’s person offered thе question who that Petree advised without against legislation, going to and was that he was vote bribe against legislation, there be would going to use his influence by he inconsistency finding jury verdict that did no legislation” as to said agree procure passage “to zoning matter. Mobley App. heavily v. counsel relies
State’s extensively therefrom, 654), urging quotes SE2d That dealt matters.” Not so. case that same "seems settle these (2) check, indictment, charging forging a three-count with a check, uttering possession of with intent to fraud- a check ulently pass convicted on all three counts. same. Defendant was solely question opinion with the of exces- Judge Townsend’s deals No men- proper cases this kind. sentences sive sentences guilty on of not one tion is made of what effect a verdict important might But it is have had on the other counts. counts quoted immediately portion coun- preceding the State note that 327) (see brief, p. Judge top of tо the case of refers Townsend sel’s written App. also Davis Townsend, by Judge moved that where defendant required proceed upon, elect as to which count it where would 313): transaction, grows (p. the offense out of one and holds "The question duplicity motion to elect this case in that raised predicated it was fact on the that both referred to the indictments motion, accordingly proper It same offense. was and the failure grant being it has resulted the defendant under two sen- punishment Accordingly, tences of for the spe- same offense. grounds cial of each of the raising motions for new trial question improperly majority opinion overruled.” But the says favorably court ruled instructing trial to defendants jury that defendants could be convicted on both counts. ruling definitely unfavorable to the defendants in allow- ing them be tried on two counts. It was unfavorable to allow jury to make one decision in favor of defendants and deci- one against compromise perhaps sion them —as the trial —when court should have made that decision of one count and not jury verdict, left it compromise for the to use finding as a on a guilty they one-half of the counts with which *11 charged. were majority opinion
The suggests prosecutions multiple that for Ann, permitted offenses are under Code 26-506 which § reads as "(a) follows: When may the same conduct of an accused establish crime, the of may commission more than one prose- the accused be not, however, may cuted for He each crime. be convicted of more other, than one crime if one crime is in included the or the only prohibit crimes differ in that one is to designated defined a generally kind of conduct prohibit specific and the other to a in- conduct, (b) stance of such If arising the several crimes from the proper same conduct are known to prosecuting the officer the at commencing prosecution time of jurisdiс- and are within court, they single prosecuted tion of a single be in prosecu- must a (c) (c). provided except tion as subsection When two more or charged by required (b), crimes are as subsection the court in justice may interest of order that one or charges more of be such separately.” tried
But, absolutely nothing there is in this statute which deals with, alleviates, any or in repugnant manner of effect verdicts. suggest may This statute does guilty not that a verdict of not guilty rendered as to a to verdict as one offense rendered Instead, same transaction. growing out of the another offense may of more not be convicted simply the defendant states that This is a is included in the other. crime than crime where one one guilty not provision would allow a which cry indeed from far guilty the other offense verdict of to one offense and verdict as exactly support to the conviction proved are the same facts where оffense. of each
Further, that by the statute suggestion no above there is is ex- crime twice and that be tried for each above accused can judice. language of the actly case sub what was done proof 1 to convict the sufficient Count indictment is violating Ann. Ann. 26-2301 and Code both Code § defendants (b); language proof of Count 2 and 26-2304 § violating both the to convict likewise sufficient above statutes. bribery by as or offer- defines solicitation
Code Ann. 26-2301 § any re- ing any political of a subdivision of official performance to influence him ward to which he is entitled office, Ann. any his whereas Code act related functions of (b) limited, for solicita- more and makes unlawful 26-2304 is § political a reward by offering of a subdivision tion or officer pas- agreement procure procure or return body sage legislation of which he a member.
I Code Ann. 26-2301 is repeat, difference § "any office”—whereas Code Ann. related to functions his act (b) attemрting procure leg- procuring 26-2304 limited to body of which he is a member. islation of fallacy counts in in the contention is that both But State’s acts, judice charge the same the indictment case sub 26-2301; brought under Ann. both could have been Code counts *12 brought have been under Code and likewise both counts could (b). Ann. 26-2304 § sound, position be it would have to
In for the order State’s only prosecuted one could under show that one of counts be sections; only pros- be the other count could the above Code while Code Inasmuch the other of the said above sections. ecuted under definitely prosecuted under each them have been as each of could statutes, try right no the defendants un of said had transaction; charged der two which the same and their counts require elect have been sustained. motion State to should Further, "any allege did related the State not act to the functions 26-2301, specific office” Code act of "in of his undеr Ann. § fluencing (b); legislation” under Ann. 26-2304 but both Code § specifically alleged alleged bribery counts was for the specifically purpose "influencing legislation” using lan —thus (b). guage bring each count under Code Ann. There 26-2304 prosecutions” "multiple could be no valid contention that are in 26-506, provided for in Ann. volved Code the same because conduct is not shown to establish than one commission more crime; other; alleged nor is one included in the crime nor does one charge general charges specific count conduct while the other general repeat instance of such conduct. We indictment alleges specifically bribery here "influencing leg the crime of as to islation,” appropriate specifically which is to Code Ann. § 26-2304 (b); simply and Code Ann. not involved in this case. § 26-506 position improved
But State’s would if it could be applicable demonstrated that one count was one of these stat- utes, applicable аnd the count other was to the other statute. This because a defendant iswho indicted twice for the same transaction, statutes, although under different and who is tried acquitted charge, prevent first is entitled to the use against of the same evidence him in trial of the second b) charge. In the case Harris v. defendant, 147 ALR was held that the who was tried acquitted murder, and was thereafter indicted for armed robbery transaction, in the same was entitled to have the testi- mony theory judicata excluded estoppel of res and "the testimony again litigate State could not use such the control- ling already determined,” judgment issue and the was reversed. Holt v. defendant indicted for murder and discharged demanded trial and was on failure of the State to ac- trial; timely aggra- cord him a he thereafter was re-indicted for riot, growing vated out of same transaction as the murder charge. A reversal was ordered because he could not be indictеd a acts, though second time for criminal under a different
685
(102
519),
State,
de
73
SE
v.
150
In Banks
Ga.
named offense.
charge
and at the
acquittal of the
of seduction
an
fendant secured
He
grand jury
him for fornication.
indicted
same term of court
in
bar,
was
alleging
transaction
plea in
filed a
striking
plea
his
trial court erred
It
held that
volved. was
embodies,
necessarily
as an element
of seduction
and "the offense
be accom
thereof,
Seduction cannot
of fornication.
offense
accused, on the trial
...
If the
plished
intercourse
without sexual
plea,
be entitled
an
he would
for
should sustain his
fornication
State,
acquittal.”
Bell v.
"If the two involve the same charged fact that the offense in the second indictment is name a different offense from that which set forth in the first does prevent judgment not a being from first a bar to the prosecution.” second analogy
Of judice holding considerable to the case sub is the (86 State, 642): App. "Where, Swain v. 91 Ga. 564 SE2d on hand, separate arising other single out of offenses a transac- separate indictment, tion are included as of counts an and the necessary evidence on precludes convict one of the counts a finding guilt other, of repugnant.” the verdict is I do not concede the indictment charged "separate here offenses”—but places simply charged it in two the same offense. But even so, holdings, under the above sepa- even if the offenses had been rate, the result would have been the same and would authorize a reversal of this case. (144 State,
In the case of v. App. Waters 112 Ga. 201 SE2d 477), it is plea held that jeopardy good of former where the same, transactions though are even the offense be different as State, (2) (40 of 932), matter law. v. Lock SE plea acquit is held that a of alleges autrefois sufficient if offense in the second indictment is the same "or could have been subject investigation made the under the indictment” and first alleges acquittal under the Surely, first indictment. it cannot be contended that all conduct of the two judice fully case sub could investigated not have been under the trial State, of either 1 or Count Count 2. In Franklin v. 85 Ga. 876), acquitted 570 SE simple defendant was assault and
687 growing with intent to murder out indicted assault thereafter no "There can be second the same transaction. The court held: assault, major grade and as the includes jeopardy either as to minor, comprehends simple the same second indictment acquitted first indictment.” of which accused was assault authority majority opinion opinions as for its cites several they them simply inapplicable; are one of is a position, but support a of two the same would conviction case where facts State, Pippin v. cited are: 205 of an indictment. These cases counts (not identical) (5) (53 482), where offenses similar Ga. (1) (53 381), State, charged; v. SE where Sutton Ga. 815 are adultery charged, and different are facts fornication adultery; required Lascelles v. prove whether fornication State, forgery charged to 35 ASR ways; v. been committed in different Stewart 58 Ga. have 577, 580, felony charged to been committed where one have ways; where in different Hoskins v. 11 Ga. offenses indictment; grades charged different Webb *15 charged in one App. 505 where two felonies indict at times. ment to have been committed different guilty repugnancy 1 creates a as to The verdict of on Count 2; illegal. guilty the conviction is I the verdict of on Count and corresponding 7 and the therefore dissent from Headnotes 6 and opinion majority. divisions of the 13, 1970, superior cоurt of Atlanta Ju- 2. On March permitting dicial Circuit issued a warrant and order surveillance defendants, recording recording including devices for of the use conversations, commonly "wire-tapping.” telephone as The known immediately, sought placed in the conversations devices were use immediately "wire-tapped” and defendants be overheard were order, wit, day of on on the were arrested issuance applicable terms Federal March 1970. Under the stat- (5), ute, 18, USCA, provided "Every it is that: to wit: Title a provision that and thereof shall contain order extension practicable intercept as shall executed soon authorization objec- upon authorized . and terminate attainment . . must USCA, thirty days.” Title tive or in event Under (8a) "Immediately upon expiration provided it that: thereof, recordings
period the order or such shall be extensions judge issuing made available to the such order and sealed under If the order did not cоntain re- his directions.” State court’s quired language, to the effect that the authorization "must termi- upon objective” illegal it nate attainment of the authorized was an Regardless, mandatory order. the law will write into the order the language argument. of the statute. This leaves too clear for 13, 1971, interception was made on March and the authorization day; required terminated on that was to make re- State cordings immediately, issuing judge available to the sealed law; comply under his directions. The did not with recordings period held the out for all of that from March 13 until April days, lapse rendering 7th—a time of 25 thus same abso- lutely completely illegal. suppress tape recordings,
Defendants moved to these and ob- evidence, jected by stipulation to their introduction into grounds objections continuing, apply of motion and were made throughout Further, tape recordings the trial. when the were of- evidence, objection ground fered was made proper State had not laid a foundation for introduction of same. suppress objections tape The motion to recordings and the overruled, tape recordings and said were admitted into evi- dence on behalf of the State. Georgia subject
There is a Federal statute and a statute on the wire-tapping, similar, of surveillance and both of which are 1968, although both of which were enacted in the Federal statute June, Georgia was enacted in and the statute was enacted in April. tape recordings finally When return of the made to the judge, receipt thereof, reciting he issued an order in that his order Georgia had been issued under both Federal and statutes. question There can be no the Federal statute controls *16 occupies legislation where it the same field of Georgia as does the 1945, XII, Georgia I, statute. The Constitution of of Art. Sec. Par. (Code 2-8001) I Ann. provides supreme that the law оf this State is the of pur- Constitution the United States and all in laws made Supreme Georgia suance thereof. The Court of has held that Georgia where there is a conflict between a statute and a Federal statute, Georgia yield the statute must to the Federal statute. See
689 (68 Co., 35, Ga. 39 R. Atlanta &c. 135 Co. v. Sand Southern 807). Georgia the statute allows here in that There is a conflict judge who to issues tape recordings to be returned requires days, Federal statute within whereas the order 30 (Ga. (i) L. immediately. Code 26-3004 New Criminal return 1328) (8) (a), Title pp. and 18-2518 USCA. opinion
Actually, majority con- clear as whether the is not to applied law. It seems be or the Federal tends State law should contempt in- rely stating only in that can be on Federal law making un- in an under Federal statute for surveillance voked fashion, although clearly illegal this authorized rely positively again, of But the law. seems misstatement thirty days suggesting there- law when that are allowed State surveillance, return the order whereas Federal law under for of of immediately interception requires the to be when the return made is finished. defendants, defendants, entitled to have
But these
and all
are
favorably
helping
towards
them
all criminal
laws construed most
against
Waldroup v.
strongly
and most
198 Ga.
State.
(30
914);
Before,
153 ALR
Balkcom v.
Defendants’ motion to was couched in language con- cluding interceptions with: "The comformity not made in with the order approval.” of authorization or
As to whether invoking defendants were limited to the con- court, tempt powers question plainly has been clearly by Supreme decided Georgia Court of in Cross v. 507). The State’s brief makes this rather amazing statement in reference to same: "To us it is obvious that go law, if we are to federal as in Cross v. appellant prevail, cannot because the matter is for the
judge who issued the warrant
to enforce
contempt pow-
under his
ground
ers and
suppression.”
not a
majority opinion
approve
argument
seems
in State’s
brief. But the
(p.
directly
Cross
opposite
case
holds
the state-
brief,
ment set forth in
exactly opposite
State’s
majority
opinion,
that,
as follows: "We think
without resort to the reason-
ing applied in
States,
the case of Weiss v. United
Further, re- objections made these have been cordings the time of their introduction should at *18 sustained, proper objection no foundation or basis which was that Solomon, In laid for introduction. M. Jr. v. had been such Steve App. it is held that "a Edgar, transcriptions] use must proper [mechanical foundation for their (1) It be that the mechanical made as follows: must shown (2) taking testimony. It transcription capable must device was competent operate operator that the of the device was be shown (3) recordings authenticity must be and correctness of the it. (4) additions, changes, dele- It must be shown that established. (5) preservation not The manner of tions have been made. (6) Speakers be identified. It must
record must be shown. must freely voluntarily testimony that the elicited was be shown made, judice without kind of duress.” But in the case sub competency operator there was no evidence as to the of the of the clearly "changes, that mechanical device. It was not shown addi- tions, contrary, To the one of or deletions have not been made.” important respect the State’s witnesses this was Mrs. Juanita Kersey, respected employee оr official in the officeof the District Attorney, transcribing tapes and who entrusted with was tapes were in writing. This witness testified that while the her custody message writing, re- into and then she transcribed Boyle; tapes Mr. then had occasion to listen to turned she tapes again, presence representatives in the of other of the transaction, Attorney, testified: "I lis- District and as to this she gentlemen identified as Mr. Jim Bowen tened to them with the listened, Ridley. things and Mr. Robert We there were that I heard There were a few occasions again that I had not heard before. Ridley what we If I did where Mr. or Mr. Crist said this is said. it, it, sorry gentlemen I if I could hear I told the was not hear they put I it I could not hear what could hear and could not Thus, my transcript.” carrying the burden instead of the State’s case, foundation, required by proving proper the Solomon as made, had been or additions” changes, deletions supra, that "no witness, this State’s contrary proven and was absolute things the second recording heard tape had control who And, heard before. had not tape played that she time having tapes been al- beyond peradventure as to leaving it Moody, Georgia testimony Elvis Dr. Willis tered consider expert for the defendants Technology, who testified School mind, how- It will be borne tapes altered. had been tapes proving the had ever, burden of had no that defendants they prove had not altered; was on the State the burden been been altered. State, he is enti- any person of crime is convicted
Before
language
learned and
legal
trial.
tled to a fair
years
Bleckley,
hundred
Logan E.
almost a
jurist,
eminent
Justice
While I have been unable may foolhardy, lengthy dissent seem ciates on this court and this may who have taken the trouble to read this I would remind those far, Hughes, any, excel- if Justice Charles Evans his Chief States,” Supreme Court of the United at lent work entitled "The appeal says: of last resort is an to the p. 68 "A dissent a court law, day, intelligence future brooding spirit of a may possibly correct the error into which later when a decision betrayed.” dissenting judge been believes court has reasons, I foregoing would reverse this case. For all of the