Estevez v. State
130 Ga. App. 215
Ga. Ct. App.
1973
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ESTEVEZ v. THE STATE

48160

Court of Appeals of Georgia

OCTOBER 16, 1973

REHEARING DENIED NOVEMBER 9, 1973

130 Ga. App. 215

QUILLIAN, Judge

.”

Under the above authority, it matters not that the act which produced death was intentionally inflicted, but rather the question is whether the consequence, or result (death) was expected to flow therefrom.

Continuing with this discussion, on page 217, the court states: “The courts accepting it have generally held that where an injury is the result of a voluntary act, in the performance of a slip or mishap, it is to be regarded as having been caused by accidental means. Cf. . Many courts have held too, that the means are accidental if the doer of the voluntary act was ignorant of a material fact or circumstance which would have caused him, had he known it, to do the act differently or not do it at all. Cf. .”

The majority opinion cites the case of , as supportive of its position. But that case is readily distinguishable, for it was not shown there that the deceased had ever taken drugs before and, further, he consented for his physician to administer penicillin, but most important, he suffered with a hyper-susceptibility to such drug, and it was held that this is not a bodily infirmity. In the case sub judice, there is no evidence to show that the deceased consented for the drug to be administered or that he administered it himself; and there is no evidence to show that he suffered from a hyper-susceptibility to drugs. In the case, supra, there was no evidence to show that Johnson had ever taken drugs before, whereas there is evidence to strongly indicate that Jackson had taken drugs many times before, always without evil results, or at least, without suffering death as a consequence. We repeat, the case is clearly distinguishable from the present case, and is not authority for the majority‘s position.

There were issues for a jury to determine and I would reverse the lower court in granting the motion of the insurer for summary judgment. I therefore respectfully dissent.

QUILLIAN, Judge. The defendant was indicted and convicted on two counts, one for possession of cocaine and the other of unlawfully offering cocaine for sale. The defendant filed an appeal and the case is here for review. Held:

  1. Enumeration of errors numbers 6, 7 and 8 contend it was error to admit in evidence a bag of marijuana and also in not giving special instructions to the jury in regard to this evidence. There was no request made for special instructions to be given the jury. . There was no objection made when a detective testified that he found the “suspected marijuana” in the kitchenette of the appellant‘s room. It was not error to admit the exhibit, since substantially the same evidence was admitted without objection. ; ; .
  2. The defendant argues that it was error for the trial court not to require the state to produce an informer who was a witness to the transaction which resulted in the appellant‘s arrest. While it is true that the informant was a witness to the transaction, the informant‘s testimony was not essential to the defendant‘s conviction. The fact that the informant is a witness is not controlling where such evidence is not necessary to obtain a conviction. . In , it is stated: “We believe that no fixed rule with respect to disclosure is justifiable. The problem is one that calls for balancing the public interest in protecting the flow of information against the individual‘s right to prepare his defense. Whether a proper balance renders nondisclosure erroneous must depend on the particular circumstances of each case, taking into consideration the crime charged, the possible defenses, the possible significance of the informer‘s testimony, and other relevant factors.” In the case sub judice no error was committed by refusing to require the state to produce the informer.
  3. The defendant contends: “The trial court erred in submitting both counts of the indictment against appellant to the jury where the contraband or evidence allegedly possessed by appellant in Count 1 (State‘s Exhibit No. 2) was the same evidence upon which the charge of selling (Count 2) was based; all arising out of the same transaction, in violation of Code Ann. § 26-506 (Ga. L. 1968, pp. 1249, 1267).” With the defendant‘s contention we agree. In , it was held: “The contention of the defendant is that the possession and sale of marijuana on the same day and the possession and sale of heroin on the same day merged, and that the court thus erred in charging the jury that it might convict the defendant of separate counts and in thereafter entering judgment against the defendant on the separate counts and sentencing him on the separate counts. Defendant contended there was a merger of several of the crimes charged. ‘When the same conduct of an accused may establish the commission of more than one crime, the accused may be prosecuted for each crime. He may not, however, be convicted of more than one crime if (1) one crime is included in the other, or (2) the crimes differ only in that one is defined to prohibit a designated kind of conduct generally and the other to prohibit a specific instance of such conduct.’ § 26-506, Criminal Code of Georgia (Ga. L. 1968, pp. 1249, 1267). The offense of sale of marijuana and heroin necessarily included the offense of possession of marijuana and heroin, that is, unless the evidence showed they were on different occasions on the same date. But in this instance the evidence showed that there was a merger of certain of the counts of possession and sale; thus, under the Criminal Code the doctrine of merger is still the law in this state. See ; ; .” The conviction and judgment as to Count 1 of the indictment must be set aside. .
  4. The trial court erred in failing to instruct the jury in regard to reducible felonies. Code Ann. § 26-3101 (Ga. L. 1968, pp. 1249, 1334). We therefore reverse with direction that another jury be impaneled for the purpose of determining sentence. ; .
  5. The remaining enumerations of error are without merit.

Judgment reversed with direction. Bell, C. J., Clark and Stolz, JJ., concur. Evans, J., concurs specially. Hall, P. J., Eberhardt, P. J., Pannell and Deen, JJ., dissent.

Garland & Garland, John A. Nuckolls, for appellant.

Lewis R. Slaton, District Attorney, Dennis S. Mackin, Morris H. Rosenberg, Carter Goode, for appellee.

EVANS, Judge, concurring specially. In Division 3 of the majority opinion it is held that Count 1 of the indictment (possession of illegal drugs) is merged with Count 2 (offering illegal drugs for sale). In other words, it is held in effect that defendant could not have offered the drugs for sale unless he possessed same. In the case of , and , I wrote a lengthy dissenting opinion (pp. 677-687), in which I undertook to convince my eight associates on this court that there was a merger of offenses in that case, but without success. Count 1 charged defendants unlawfully solicited a bribe to use his influence and obtain his vote to secure passing of a certain zoning resolution; which Count 2 charged defendants unlawfully solicited a bribe to attempt to procure passage of legislation before the Board of Aldermen as to the same zoning resolution.

Of course, there was no difference whatever between the two counts, as “using his influence and obtaining his vote” was exactly the same thing as “attempt to procure passage of legislation.” And while I could not secure the agreement of any of my brethren as to merger in the and case, supra, I agree with the majority opinion in this case that Count 1 of the indictment (as to possession of illegal drugs) merges with Count 2 (as to offering illegal drugs for sale).

DEEN, Judge, dissenting. The majority opinion holds that the lesser crime of illegal possession of cocaine merges with the greater crime of selling. This is contrary to which held that the lesser crime of illegal possession of a pistol is a separate crime from armed robbery with the presence or possession of the same pistol, and is likewise opposite to . “The offenses of burglary and possessing burglary tools are separate and distinct, and an accused may be convicted of both offenses, even though they are committed in the same transaction.”

The majority is diametrically different from : “The possession of drugs... and the selling of the same drugs, are in law separate and distinct crimes and each is punishable.” There is no merger of the lesser crime of possession in the latter three Supreme Court cases.

This court has attempted to distinguish , supra, on the ground that it was decided prior to the effective date of the 1968 Georgia Criminal Code. and , supra, along with were all decided subsequent to the effective date of the present criminal code, the latter case citing , supra, with approval. Compare and see: ; ; ; ; . I must respectfully dissent, as those convicted of lesser crimes of illegal possession of narcotics must be fed out of the same spoon of punishment as those convicted of the lesser crimes of illegal possession of weapons and burglary tools. The merger statute applies equally to all crimes.

I am authorized to state that Presiding Judges Hall and Eberhardt and Judge Pannell concur in this dissent.