*1 compute who could Loan Commissioner Industrial The Act regulations. upon based and amount type borrower; clearly on the this burden put does in the contract. of this disclosure informatiоn 25-319, face, is, on violation the contract its As 25-9903; and as void under Code is therefore and on the face of non-amendable defect was the motion to set in denying the court erred рleadings, aside the JJ., Clark, concur. Evans reversed.
Argued February April Decided appellant. D. for
Richard Ellenberg, Roberts, Jones, B. appellee. N. J. Lewis THE 47984. CROSS v. STATE.
Argued April Decided March
Rehearing April 19, 1973. denied *2 Casper Rich, Bass, Broome, Broome, & K Kidd Robert Bryan Rich, Skinner, Jr., Cavan, William F. C. M. for appellant. Attorney, Bell, Peek,
Richard Distriсt M. Randall appellee. Presiding Judge. prohibitions The found in
Hall,
Eavesdropping
26-3001 on "Unlawful
and. Sur-
inapposite
they
are
logically
veillance”
here because
relate to оne who is not a
to the conversation itself.
"intercept”
One does not
"overhear”
that is
eavesdropper
made
to him. He is not an
nor does he have the conversatiоn under "surveillance.”
"Eavesdropping,”
Dictionary
See
Black’s Law
190,
Co.,
122 Ga.
Ins.
England
v. New
Pavesich
Life
68).
another
(50
makes a statement
who
Anyone
SE
it
repeat
it is
may
to whom
made
persоn
that
knows
mere fact that
him. The
against
may
who
use
others
was directed made
the statement
whom
person
person
recorded
knowledge
recording without
1283,
97 ALR2d
value. See
evidentiаry
its
vitiate
does not
491, Evidence,
10, 12; 29 AmJur2d
§§
in a
is well stated
recent decision
principle
This
has similar
Supreme Court which
facts.
United States
S. 745
v.
401 U.
SC
United States
States,
S.
385 U.
"Hoffa United
LE2d
Katz, held
however
by
strongly
was lеft undisturbed
apparent
colleague,
trust
may
a defendant
by the
respect
protected
in this
are not
expectations
colleague
turns out
Fourth Amendment when
communicating with
аgent
regularly
is a government
circumstances,
In
'no interest
authorities.
these
Amendment
by the Fourth
legitimately
protected
*3
involved,’
'a
protection
affords no
to
for that amendment
a
to whom he
person
belief that
wrongdoer’s misplaced
not reveal
it.’
wrongdoing
will
voluntarily
confides
States,
at 302. No warrant
'search and
Hoffa v. United
circumstances,
...
the
in
or when
requirеd
seize’ is
defendant,
carries
unbeknown
to the
agent,
same
the defendant’s words and
to record
equipment
electronic
later offered in evidence.
gathered
the evidenсe so
States,
...
It is thus
Therefore, the federal while statute is worded while differently, the statute is not under attack, reasoning constitutional the same the supports interpretation of 26-3001: does not to one apply a who is to the conversation. chiefly upon
The state has relied 26-3006 provides: which in "Nothing section 26-3001 shall prohibit the interception, recording and divulging message . . . shall constitute [when] commission of a crime or the furtherance crime, provided at least one party thereto shall consent.” This section though is also applicable, redundant interpretation view the above of § probable 26-3001. It seems 26-3006 was intended to cover those situations in which the conversation was parties, between two private one of whom consented to interception by some third party, most likely agency. enforcement This not does mean that if parties to the conversation is а police officer has who consented that the section cannot apply. Defendant contends that police will always consent to electronic eavesdropping, making prohibition meaningless. Defendant has overlooked the clear wording consent of one of the to the parties the "consent” third conversation, interceptor. The rationale for consent a party is exactly the same as that stated in supra, United States and is also true under the federal statute. USCA, § *4 (2) (c). State, See also Ansley 670, App. Ga. 562), 922, SE2d сert. den. 408 U. S. 929.
The trial court did in overruling not err this motion to suppress. Evans, J., J., Clark, con- concurs. affirmed. specially.
curs concurring agree specially. Judge, with I do Evans, opinion’s majority 1 that: in Headnote statement prohibitions § 26-3001 on 'Unlawful of Code "The Eavesdropping to one who is not relate and Surveillance’ agree I with nor do to the conversation” page beginning subject at this discussion of (Emphasis supplied.) secretly persons private is of two If the conversation persons, by (clandestinely) of such recorded one privacy. See unlawful invasion constitutes an 1327). (Ga. pp. 1968, 1249, This statute L. Ann. 26-3001 goes "eavesdropping” specifically beyond and far mere provides record” is unlawful to "transmit or that it also originates private which anоther any private place. exceptions, course, as the there are certain
Of persons giving by §Ann. all involved. Code consent (b). Further, are law officers 26-3001 enforcement susрected excepted trying apprehend one while (warrant) violating provided laws, order superior and is surveillance court obtained recording performed in strict acсordance with several are (See statutory provisions. Code Ann. 26-3004 all p. pp. 1972, 615; subdivisions; 1328; Ga. L. exception Another when message a crime itself shall constitute the commission of crime, or parties and if furtherance of a
thereto shall consent. See Code Ann. 26-3006. (This only provision is the under where give legality only the consent of one is sufficient recording the clandеstine of a conversation originates private place.) in a quite important my disagreement I consider it to note give majority opinion, otherwise I would with because is, law, sanсtion to what I know not the *5 842 may clandestinely report
one record and the private party in conversation he has with another a place. legally purview To sodo he must come within the exceptiоns instance, the herein noted. For the law-enforcing exception officer is not within an when he reports may records and a conversation which afford previously guilt evidence of a crime committed. To exception, come within the the conversation must itself constitute a crime be in a crime. furtherance of majority opinion strongly upon quotes Thе relies and from United States v. S.U. SC 453), using pages. only justices 28 LE2d several But four quoted language, course, concurred in the and it is not binding precedent. is not a Mr. Justice Brennan judgment only, p. very concurred in the pertinently and at my words, states: "In it other view that jurisprudence interposes current Fourth Amendment a requirement only third-party warrant in cases of monitoring electronic . . . but also in сases electronic recording by government agent a aof face-to-face (Emphasis suspect conversation with a criminal ...” supplied.) hardly necessary
It is to remind that thеre was no judice. warrant in the case sub applicable But, the federal authorities are not here completely because the federal law the unlike (2) (c)(d) specifically provides law. Title 28 U.S.C.A. 2511 persons that if one of the acts under color of law and is conversation, is not unlawful for him to intercept Georgia law, But communication. as (Ga. 1249,1333) found in Code Ann. 26-3006 L. provides that is not unlawful to record parties when consent; both to the conversation or where the conversation crime or in itself furtherance of readily Thus, crime. it is seen thаt the federal is much government more liberal towards the than is the state repeat law, and we the federal authorities are inapplicable. suppress of a motion affirms thе denial
The majority case, The I concur this evidence which was evidence shows defendant one wherein recorded was electronically course, is an Of to bribe officer. proposed by Code rule and is covered general exception (4) State, App. 124 Ga. Ansley Also see 26-3006. (185 SE2d *6 PARGO, et al. v. KENNEDY
47926. INC. appeal from the order Judge. This Pannell, overruling defendant-appellant’s motion trial court foreign Defendant-appellant, judgment. summary agreement, provided to written corporation, pursuant use at the Okefenokee golf carts for operated battery Georgia, where one the carts in Waycross, Golf Club A. Sr. Kennedy, J. plaintiff-appellee, into backed concerning the existence exist Substantial issues relationships, lessor-lessee joint venture versus The evidence foreseeability, negligence. of these issues. concerning of fact each findings in this case we cannot presented view the evidence In negated conclusively defendant has say that entitling recovery plaintiff element essential pleadings from the theory fairly under drawn every The trial court did err and the evidence. overruling summary motion for appellant’s J., Stolz, Eberhardt, J., P. affirmed. concur. April
Argued February Decided Whittle, Bennet, Gilbert, Gilbert, Gayner, & Harrell