*1 286 that the evidence demands a that the finding injuries Boose, by caused either the corporation,
were or both. injury Where the could have been the only by caused defendants, one or the other the negligence of or both on v. concurrently, charge accident is error. Davenport 179). Little, App. The term which, accident be used "to indicate happening not free from although wholly some negligence by person, not a failure of proximately was caused either of the to a parties ordinary case exercise care in the (1) (54 Jackson, situation.” Baggett v. App. Sosebee, 146); Boatright The second trial of this case was against only, defendant Kassuba and the court made clear before jury could find a defendant’s verdict on basis of accident they must determine the cor- its poration, through agents, in acting was no manner on negligent. Negligence part Mrs. Boose not involved; she was not a party at this trial. Negligence not, injured involved; child was his act could not be denominated on negligence account of youth his and the person charge of him at the time did not appear case capacity either defendant or witness. The acts of or all of these could have constituted "unknown cause” because the jury was deciding neg- vel non ligence part on the of the defendant only. instructions were without error. Stolz, J., J., Judgment Evans, concurs. affirmed.
concurs in the judgment only. 49848. BAXTER THE STATE.
Webb, Judge. Baxter, William E. Jr. a commercial operated gambling establishment in a near dwelling Augusta which he had leased. Pursuant to a warrant, search premises were raided law enforcement officers on 12, 1974, night April during week of Masters *. Baxter, Tournament. A number Golf of persons, including equipment arrested, much commercial were result, As a seized, were games interrupted. and the tried, the State convicted and sentenced Baxter was accusations on each of two County Court of Richmond of Code Ann. violation misdemeanors charging *2 26-2707, equipment,”1 device or gambling "Possession of 26-2703, gambling.”2 Code Ann. "Commercial court, four fouls were charging to this appeals
Baxter trial and the enforcement officers the law by committed he are: complains of which court. The errors alleged on (1) issued improperly was The search warrant information; than hearsay proper rather (2) of Investigation An Bureau Georgia agent (now authority no to seek has Investigation) Division warrant; and obtain a search
(3) executed without warrant was The search premises. of the entry reasonable notice before forcible fouls the law alleged by Because of these three the trial court officers, Baxter contends that enforcement motion to suppress committed error his denying testimony resulting the raid and the evidence obtained therefrom. His other foul is: alleged on each of the two The conviction and sentence and violative of multiple prosecutions accusations are (a).3 Code Ann. manufactures, owns, knowingly
1"A who person he device which any or commercially, possesses transfers anything or purposes for gambling is designed knows or essential subassembly as a designed he knows is which of a high misdemeanor device is of a guilty of such part nature.” and aggravated when he gambling
2"A commits person (a) Operates acts: following of the does intentionally (b) or place; of a earnings gambling or participates bét;'. . . a- bet or offer Receives, records, forwards a pun shall be convicted of commercial person na and aggravated for a of a high ished as misdemeanor ture.”
3"When the same conduct of an accused crime, establish the commission of more than one We deal the four alleged with errors seriatim. 1. Baxter contends that affidavit upon which the warrant was based does not constitute showing cause, affiant, that probable Harry Coursey, G. special agent Investigation, Division Georgia he states received some of his information from fellow Peters, E. P. who agent, merely repeating something informer, that had been told him aby confidential that there is no statement Agent Peters is a reliable information, source of and that the affidavit hearsay hearsay. on
Special Agent Coursey his affidavit stated that he personally conducted a surveillance of on premises 11, 1974, the April day before he appeared before the magistrate, premises were those indicated by information as housing gambling operation, that during surveillance, his Baxter was observed in the vicinity of - and that premises, the confidential information re "by ceived Senior Agent Peters from a un- reliable named informant has been established accurate *3 independent investigations affiant...” '" "In dealing cause, with probable ... as the very name implies, probabilities. we deal with are not They technical; are they the factual practical con siderations of everyday life on which reasonable prudent men, not legal technicians, act.” Brinegar v. States, (69 160, United 338 U. 1302, S. 175 SC 93 LE 1879). There is also a great what "difference between is to required prove guilt in a criminal case and what is to required probable show cause for arrest or search.” (79 States, 307, v. United Draper 358 U. S. 311-312 SC 327). 329,3 LE2d As Judge Learned Hand said in United (CA Cir.): v. Heitner, 105, 106 States 149 F2d 2d "It is well settled that may an arrest be made upon hearsay may accused for prosecuted not, each crime. He however, (1) be convicted more than if one crime one (2) other, crime is the crimes differ only in that one defined is to a prohibit designated kind of conduct generally other to a prohibit specific instance of such conduct.”
289 ’ indeed, necessary to the' reasonable cause evidence; strictness of cannot demand the same arrest support trial, powers unless guilt a upon as the accused’s proof they to cut that cannot are be so down officers peace ’ State, 114 v. their [From Peters duties.” perform possibly 647)]. (152 hesitancy no 595, 596 We have Ga. SE2d App. and, these indeed, reiterating principles in adopting respecting contentions appellant’s connection with The affiant here this case. showing of cause probable magistrate issuing facts authorize ample showed a there cause to believe that conclude that was probable in the had been crime of nature set forth affidavits that crime would be evidence committed a search of the described premises produced The fact that much of affiant’s information affidavits. from informants would not vitiate was derived (165 859, v. 224 Ga. 865 Stynchcombe, warrant.” Strauss (181 State, 387, v. 227 389 302); Johnston Ga. SE2d SE2d (182 State, 730, 779); 42); 734 SE2d Pass v. 227 Ga. 53). (185 State, 276 SE2d DePalma v. Ga. "It received the policeman tip. immaterial which in a government engaged of fellow officers of Observations a common a reliable basis for warrant investigation are applied one their number.” 432). officer is App. police "When reliability presumed the informant informant Causey, App. as a matter of law.” State (2) (211 225); McNeal v. §Ann. a warrant to issue upon Code allows probable to show cause that a showing of facts "sufficient committed, crime is or has been committed. The test being probable justify cause is whether would man believing reasonable caution an offense has been committed, merely or is and this being requires *4 — certainty than but more than a mere less probability (Cits. omitted). Butler suspicion possibility.” (1) (203 469, 558); Geiger Ga. App. 488, judice, was not based the case sub affidavit informant, an but solely upon information from unnamed made independent there to cor- investigation robórate informant. thus hold that there
We was sufficient of showing cause in this case to probable justify issuance warrant, search motion to on the suppress first must fail. ground
2. Baxter’s contention is Agent Coursey, as a member Division had no Investigation, authority warrant, to seek obtain a search that the warrant was void.
A upon search warrant be issued the written complaint officer of any the state or political its sub- divisions charged with the the crim- duty enforcing §§ inal 27-303, laws. Code Ann. 27-314. It shall is- sued in duplicate and directed peace to all officers of the " state. Ann. Code 27-305. officer’ 'Peace means per- son who virtue his public office or employment vested by duty law with a to maintain order or public offenses, make arrests for that duty whether extends to all crimes or is limited to specific offenses.” Code Ann. (k).
Members of the Division of are Investigation vested with the same authority, powers and duties possessed by the uniform division of the Department of Public Safety. 92A-302, §§ 92A-242, Code Ann. Also, and 92A-243. division has specific statutory authority investigate and make arrests of persons violating Georgia Drug (f) Abuse Control §§ Act. Code Ann. 79A-208 et seq., 40-3501, 40-3521 and 40-3522. (Code L.
Additionally, Ga. p. as amended 92A-242) §Ann. provides that: "... Director Public Safety4 circumstances, unusual may, and in the case of shall, an order the Governor Georgia direct from members State Patrol5 to render Georgia assistance 4This function was transferred to the Commissioner is, Public Safety case agents of the Division of Investigation, to be exercised through the Director of the Division of Investigation. 1015, 1060 Ga. L. pp. (Code §§ Ann. 40-35164, 40-35171). 40-35170,
5Members of the Division of Investigation (formerly Bureau Georgia of Investigation) occupy the same status
291 case, in any other criminal or in the of prevention law, or in violations and detecting those apprehending violating any this, criminal laws of or other or any State the United States.” (Emphasis supplied.)
There an exists Executive Order promulgated by Governor Carl E. Sanders in provides which part: "Ordered: That the members of the Bureau Georgia Investigation by so the Director De- assigned the Safety of Public in partment performance of their hereunder be they duties and are authorized to hereby state; make or any county arrests in this municipality is further ordered: . . . That the Director of the Department Public Safety hereby and he is au- thorized to issue all any orders and take and all necessary action needful to carry provisions out of this order; and it is further That original Ordered: of this order be filed in the office of Secretary of State instanter and noon, E.S.T., shall be effective 12:00 20, 1964, July shall remain effect as herein provided revoked, until rescinded or modified me.”6 (Code
The statutory provision hereinabove cited 92A-242) deliberate, §Ann. is a explicit by the delegation legislature to the Governor of power to determine when it necessary is for law enforcement officers of the Department of Public Safety to exercise arrest general and investigatory powers. The Executive Order issued pursuant to this statutory provision, until rescinded superseded, beyond is effective expiration of the term of the who Governor issued it. The power executive one of effect, never continuing ending, unbroken by succession, a principle ihherent necessary preservation of the stability and the integrity our Brewster, constitutional government. State v. 140 W. Va. (13) (84 235 231); SE2d Duff, Barrett v. 221 114 Kan. (217 918). issued, P So order has force and effect Ga. L. of the Patrol. respect as members State (Code 92A-302). Ann. p. E. Book Carl Sanders
6Executive Minute for Gov. 203; p. Smith 93. Gen., p. 711); No. 70-66 Opinions Atty. 260). 219, Manning, 206 Ga. Atkins law. Inc., Transp., v. Jones Comm. Public Service Georgia Cf. (1) (100 Division of In- agent hold that We officer, an agent that such a peace vestigation him the Director assigned duties performance detecting ap- authority, Division has of this criminal laws violating those *6 prehending warrant, and execute a search state, seek, obtain and to was so authorized Coursey agent case special that this error on alleged The second Georgia. under the laws of fails. predicated suppress the motion to which the search warrant is that 3. The third contention notice before forcible reasonable executed without was the entry premises. the raided under the premises
Baxter contends it was probably residence. Most warrant were his search originally the structure was for which purpose for that and built, testimony with replete but the record — five two telephones, it otherwise evidence was that could handle distribution blocks lines with telephone lines; system a station bell to service up telephone twelve it; drove over when a car foyer to a bell ring an iron a buzzer that caused guard; attendant as parking poker tables with blackjack to and gate open; crap grill bartender; a waitress who and a bar chips, beverage room; steaks; in a some big served drinks and the ringing evening; necessity each people present over the wire heavy mesh-type steel reentry; bell for car to windows, in a law enforcement like that used itself, back'seats; front door "the the front and entrance, cage or wrought-iron had a steel to you go up door, the front with 10 feet across built some it.” electric lock on of the search contends that the execution
Baxter because officers accomplished illegally warrant was uniform, notice of their intended no gave were not by breaking entered the forcibly premises and entry, Garner, of Investigation, of the Division Agent the doors. suppress:"... motion to hearing at the on Baxter’s testified door and to the front I came from the house side Police, hollered, open 'State the iron door and grabbed door, I State Police.’ The door locked. obviously was hollered, Police, door,’ warrants, 'State we’ve got open — time, nobody responded, agent agent buzzer, Monahan was no I had ringing still reactions. me, agent a — the with Tim Jones’ agent job carry was with, hammer he sledge tool we used to get I carrying sledge hammer. told Jones to take agent door, the lock off this iron which he did — he through went the iron All I work. then beat on the entrance to the right, — Police, house and hollered 'State open the door’ no reaction, reaction, I then there was no kicked the door, I and when kicked the door it obviously heavily I locked or told something, agent Jones to take the know, door down. You he went to work on with a sledge hammer, times, hit the lock — he hit the lock several but it was a good door and it was locked. We finally got door off the locks and went into the It opens up house. into a foyer, we went the house back straight through straight through eating area where all were people congregated, and into the room where the dice playing Q. tables and card you tables were. Can or can not you give us the time that first you rattled that iron door to the time *7 you finally entered the premises through second door? A. I’d say approximately minutes, two because we didn’t have a lot of door, door, trouble with the front the iron but the main house, entrance to the it took a good while get — that door down it was a good door.”
On the use of force in warrant, execution of a search (Ga. 570) Code 1966, Ann. 27-308 L. pp. provides: "All and necessary reasonable force may be used to effect an entry into any or building property or thereof to part warrant, execute a notice, search if after verbal or an attempt good faith to give verbal notice the officer by directed to execute the same of his and authority purpose, (a) (b) he is admittance, refused or or person persons within said or building or property part thereof refused to acknowledge notice, and answer said verbal and the presence of person such or persons therein is unknown to (c) officer, such or or building property part thereof is not then occupied by any person.”
We know of no that a requirement law enforcement officer shall wear a uniform when executing a search
warrant. under entry lawful a search
Requirements were held this court to be met where "The warrant door, themselves, officers knocked at identified and a after no suf- receiving response, permitted reasonably ficient interval of time to before elapse exercising phys- ical force to enter the Jackson v. premises.” (e) (201 816). App. evidence,
"On motion to suppress the trial sits judge facts, evidence, as the trior of the hears the and his based findings upon evidence are conflicting analogous to the verdict of a jury and should not be aby disturbed court if there reviewing it,” evidence to any support .. where there is a conflict the evidence on the motion to suppress, ruling trial court will be upheld where there evidence to authorize finding support his order.” (Emphasis Swift, State v. supplied.) and citations.
We hold that there is no merit in the third alleged error that the search warrant was executed wrongfully notice, failure to and the give trial did not err in judge the motion to overruling suppress evidence seized and testimony given as consequence the search warrant. 4. Baxter’s fourth error alleged is that the conviction and sentence on each of the two accusations are multiple (a). prosecutions and violative Code Ann. He tried, was charged, convicted and sentenced for possession gambling devices and for the equipment, offense of commercial gambling by operating gambling place.
Although arising
transaction,
from the same
offenses of possession of
devices and
equipment,
and commercial gambling by
operating
gambling place,
are separate and distinct. "The offenses of
burglary
possessing burglary
distinct,
tools are
an accused may
offenses,
be convicted of both
even though
they are committed in the same
Shelly
transaction.
(1) (131
Where the
*8
offenses of burglary and possessing
tools are
burglary
in
transaction,
committed
the same
an indictment
is not
illegal because it contains a count charging burglary and
a count
of
charging
possession
tools.” Smith
burglary
2) (197
Ault,
348).
(1,
v.
There are
or equipment,
devices
possession
gambling
crimes of
—
gambling
commercial
gambling place
and
operating
the possession
Code Aim. 26-2703. Proof of
as defined
not
prove
would
equipment
devices
gambling
in commercial gambling,
the accused was engaged
that he was
possession
counsel for Baxter concede
the offense of
Proof of
equipment.
devices
gambling
that he
necessity prove
would not of
gambling
devices and
gambling
equipment.
possession
on the
of the raid
night
three of those
Although
present
Amendment,
employees,
Fifth
two of Baxter’s
invoked the
waitress,
that,
on
each testified
based
the bartender and a
knew,
there
they
and what
patrons
remarks of
with
testimony,
together
This
gambling
place.
tele-
doors, windows,
entrance,
adduced as to the
facts
attendants,
verdict
support
jury
would
phones,
irrespective
operating
gambling place
of the offense
Neither
equipment.
possession
in, and constitutes
necessary
is a
element
offenses
of, the other offense. Neither
essential part
nor is either
other crime for which he was convicted
defined to
conduct
where
prohibit
generally
crime
Rowe
of such conduct.
other
instance
prohibits
specific
State, 233
500);Harvey
Argued February November Decided Rehearing denied March
Harris, Chance, McCracken, & Chance Kenneth R. for appellant. Slaton, Solicitor,
J. Edward Herbert E. Kernaghan, Jr., Solicitor, Assistant for appellee.
Deen, Presiding Judge, dissenting.
I
I
dissent here because
believe we are still confused
over the
construction
Code Ann.
26-505 as discussed
on the latest and most exhaustive
statement
by our
Estevez,
Supreme
Court: State
Estevez succinctly states that Code Ann. (where two although only crimes are there can be alleged, one punishment all where the elements of proof of one crime are necessary to prove the other "as a matter of fact”) (b) adduced, to the evidence relates subdivision (where the difference between the two crimes charged that other, one more involves than the culpability e.g. assault) simple aggravated assault and relates to the offenses as matter of The charged law. case emphasizes that to 1968 prior whereas the defendant had to show included be such both crimes to as a matter of fact and as matter of law in seeking single rather than multiple (a) sentences, only he now has to under show are they (the test) the same as a matter fact single transaction (the test). as amatter of If law definition are they crimes, they are though be charged tried indictment, in a only two-count one punishment if may all meted out elements fit of one into the other either as a of fact matter or as a matter of law.
In this case the defendant was charged two counts with and with possessing gambling equipment com- mercial gambling. Gambling equipment defined as any "device” for The designed gambling purposes. facts this case as testified show the defendant possesses tables, dice poker including gambling paraphernalia these "devices” raided etc. It also shows when chips, casino and of a operation gambling used being were The proof at the time. on going that gambling fact, matter of as a transaction single therefore shows and use includes possession and this transaction devices. proscribed with charged the defendant was Estevez evidence, the sale of cocaine. of cocaine and possession *10 sale, was a here, possession of which as showed one as a separate the crimes were Although component. as a matter of law, single transaction was matter of fact, imposed. one sentence could be only of and the use the device of possession
Here although separate gambling, the device for commercial law, the evidence to be of are shown crimes as a matter only Therefore one as a matter of fact. transaction single be imposed. sentence can states: majority opinion paragraph
The last in and element necessary "Neither of the offenses is They of, the other offense... part constitutes an essential is true and in and distinct offenses.” This separate are law (b) § which deals with out Code Ann. 26-505 wipes wipe But it does not as a matter law. separate offenses (a) in this case § all of the evidence out because single the "device” as a involves the use of possession transaction. however, case, "In the
Estevez held: instant the only sale was illegal evidence to convict required Therefore, concluded as showing possession. evidence included illegal possession the Court of Appeals, Code a matter under in the crime of sale as illegal of fact (a).” § 26-505 Ann. bar, the evidence to convict required the case at only was the evidence illegal the il- possession gambling equipment, showing a matter legal possession of fact crime illegal use. dissent, this I and write concur Evans’ Judge with Estevez both that conclusions primarily emphasize my test transaction authority single is the on the controlling here cannot possession-cum-use and that 298 from the there. See
distinguished possession-cum-sale 24) (211 State, pos- Hibbs v. 133 Ga. 407 SE2d where App. to be appears affirmance marijuana session sale Estevez. inconsistent with (see State,
Although my merger view as to Thomas v. (195 681); State, 128 Ga. 129 App. 32 SE2d Sullivan (199 State, 373); Reeves v. App. App. SE2d (197 843); Burns v. 127 Ga. App. 189); Sturgis 682)) Estevez, was overruled Court case is Supreme the latest expression should be followed.
amI authorized to state that Stolz Judges Evans and concur in this dissent. Judge, dissenting.
Evans, I dissent as to majority opinion, Division which affirms the trial court two allowing separate stand, convictions to although the evidence in support each charge exactly the same.
Defendant was tried State Court Richmond County accusations, under two tried at the same time, one brought which was under Code Ann. 26-2703, and the other being under Ann. brought Code 26-2707. The first statute above named penalizes is, "commercial gambling,” very act of engaging *11 in commercial gambling; while second statute above penalizes named "possession of gambling devices or equipment.” Evidence was introduced which was suf- ficient to authorize the to jury determine defen- dant was the owner and of a operator gam- commercial house, bling where gambling devices and were equipment maintained, and where on. gambling going
The question for determination this court here is whether defendant could on be convicted two charges, under the evidence, same which all of related to the same time and place? Could be defendant convicted of and, at gambling time, the same separately convicted of possession equipment? Is the gambling of latter charge possession as to gambling equipment, these into merged circumstances the offense of under commercial gambling?
Defendant raised and properly defense objections court, in the trial and error enumerates thereon. devices gambling may possess
A person house, for operating gambling without equipment a.m., after all instance, patrons if raid is made at 6:00 But it is retired. and the has operator have home gone a gambling the operation to conceive of impossible possessing having time at same house without very This equipment. devices gambling therein (a) §Ann. 26-506 follows: is dealt with Code situation may accused establish conduct of an "When same be crime, may one the accused of more than commission not, however, be crime. He may for each prosecuted (1) crime if one crime more than one convicted of other, in that the crimes differ only included in the kind of conduct designated to prohibit one is defined other instance prohibit specific and the generally conduct.” such other,
Hence, if one crime is included crime, not may but prosecuted defendant each It quite more than such crimes. seems be convicted one of equipment that the crime plain possession gambling house, the crime of a merges operation gambling into time, place, to one specific the evidence relates where "Proof opinion of conduct. The states that: majority course would not of gambling offense of commercial necessity prove possession that he of gambling devices and We take violent issue with this equipment.” house, as could of a gambling assertion. How the owner be, the evidence showed com- engage defendant mercial de- gambling without possessing vices and equipment? gambling envisages Commercial more than bets making game; on the outcome of a football no up folds and ends when there is gambling equipment provided by the "house.” Wells v. drugs this court held that selling distributing drugs, using the offense possession the two
following "The indictment shows that language: offenses took on the same date. allegedly place *12 conclusively evidence that defendant’s arrest arose shows to the wit- out of a State’s According transaction. single Ailiff the State’s only nesses to witness drugs sold to were found have been in the defendant’s possession. Thus defendant’s conviction of the offense of illegal selling LSD included distributing necessarily of possessing offense LSD and vice versa. While it was offenses, to indict for proper both both try offenses (a) § together, it was not under Code 26-506 proper Ann. convict on indictment, both counts and the trial court erred in so charging jury.” (195 State,
In Sturgis 85, v. 128 Ga. App. 682), this court held that selling distributing heroin necessarily the offense of possession of heroin and reversed the conviction.
The Supreme Court of in a Georgia, very recent 1974) Estevez, (May 28, 316, decision State 320, it abundantly makes clear that offense pos- merges session of cocaine into the offense selling cocaine and both, defendant can not be convicted using "The Court of language: Appeals opinion its stated (Hn. 3), 'The defendant contends: "The trial court erred in both submitting counts the indictment against ap- pellant jury where contraband or evidence allegedly possessed by in Count appellant One... was the (Count same evidence which the upon charge of selling Two) based, all arising transaction, out the same (Ga. violation of Code Ann. L. pp. 1267).” With the defendant’s agree.’ contention we This erroneous. An accused may prosecuted be for each crime arising from the same conduct. The that he proscription is may not be convicted of more than if one crime one crime is included in the other. Code Ann. 26-506.” Ansley
See 562): "In Banks v. SE de- fendant secured an acquittal of the charge seduction and at the same term of court the grand jury indicted him bar, fornication. He filed plea alleging same transaction was involved. It was held that the tri- al court erred in striking plea his and 'the offense seduction necessarily embodies, thereof, as an element offense fornication. Seduction cannot ac- complished without sexual intercourse ... If accused, on the trial for fornication should his sustain plea, he would be entitled to an acquittal.’ the case
301
(30
294, ASR 102), it is
68
State,
held,
person
put
'Where a
in
element
necessary
which is a
conviction of an offense
offense,
of another
such
part
an essential
and constitutes
for the latter
subsequent prosecution
bar to a
is a
jeopardy
Here,
first
the
act.’
the
offense, if founded
same
upon
and the last one was
battery,
offense was assault
State,
In
v.
55
Jones
rape.
intent
to commit
assault with
in
was
(3),
put
625
it
held that a defendant who
Ga.
was
not
tried
larceny could
simple
under
jeopardy
charge
In
burglary.
for
under the name of
the same offense
again
that,
'A
State,
(1), it
held
v.
"'If really the two involve the prosecutions same transaction, that the fact offense charged second indictment different by name a offense from that which is set forth the first not prevent does under judgment ” being first from bar to the prosecution.’ second
The majority opinion
Shelly
cites
135),
Ault,
and Smith
In conclusion, present case the offense "possession of gambling devices and equipment” merged with the offense "operating a commercial gambling house.” Under (a), Code Ann. conviction of the latter offense precluded conviction the former. The state presented the same count, evidence to each showing the identical conduct by defendant, the identical at the same time and at the same place.
I am authorized to state that Presiding Judge Deen and Judge join Stolz in this dissent.
50059. THE STATE v. BABB. Judge.
Clark, search case, and seizure the state appeals from