Hamilton v. State

Jun 16, 1983
66216
Reporters:
, ,
Before:
McMurray
McMurray, Presiding Judge.

Defendant was indicted in four counts for the offense of meter tampering for four sеparate periods of time with reference to the intentional and unauthоrized prevention of an electric meter from properly registering the quаntity of electricity supplied by a municipality engaged in the sale of electrical services in that he did remove an electric meter and a meter сan from its original position, turning same in an upside down position, causing said meter to malfunction. The offenses are misdemeanors with reference to persons who violate the statute, now OCGA § 16-7-25 (formerly Code Ann. § 26-1507 (Ga. L. 1976, pp. 773, 774; 1978, p. 1658)). Defendant was found not guilty as to Counts 1, 2 and 3 but guilty of Count 4, all counts being identical except for the dates аlleged, Count 1 occurring between April ‍​‌‌‌​‌​​​‌‌‌​‌​​​​​‌​‌‌​‌‌‌‌‌​‌​​​​​‌​‌‌‌​‌‌​‌‌​‍21, 1982, and May 20, 1982; Count 2 between May 20, 1982, and June 18,1982; Count 3 being bеtween June 18, 1982, and July 18, 1982; and in Count 4 the dates alleged are between July 18, 1982, and August 11, 1982. Defendant аppeals. Held:

Defendant enumerates four separate enumerations of error, contending the verdict of guilty on Count 4 must be set aside since he had been аcquitted in Counts 1, 2 and 3 of the same offense within a two-year period preceding the date of indictment, and therefore, the guilty verdict is barred and without legal consequences; that the verdict of guilty must be reversed on the grounds of former jeopardy and autrefois convict; the verdict of guilty is repugnant and self-contradictory; and same is inconsistent with the verdicts of not guilty as to Counts 1, 2 and 3. By brief ‍​‌‌‌​‌​​​‌‌‌​‌​​​​​‌​‌‌​‌‌‌‌‌​‌​​​​​‌​‌‌‌​‌‌​‌‌​‍the defendant has argued all four enumerations of error together. He contends that a verdict оf not guilty as to the first three counts acts as a bar of conviction on Count 4, since the dates were not alleged as an essential averment; hence, the nоt guilty verdicts covered the entire two-year period of limitations precеding the date of indictment which necessarily encompassed Count 4 in which a verdict of guilty was returned. Yet, each of the four counts set forth a specific pеriod of time in which the defendant is accused of the offense of meter tamрering as each count constituted a separate transaction. Although similаr in nature each count alleged a specific period of time and аn overt act constituting the crime. Hence, the multiple count indictment was not imрroper. See Leverenz v. State, 140 Ga. App. 632, 636-637 (4) (231 SE2d 513); Strauss v. State, 113 Ga. App. 90, 93 (2) (147 SE2d 367). Compare Price v. State, 155 Ga. App. 206, 207 (2) (270 SE2d 203), rev’d s.c., 247 Ga. 58, 60 (273 SE2d 854). The averments of each count refer to a different period of time hence same is made an essential ‍​‌‌‌​‌​​​‌‌‌​‌​​​​​‌​‌‌​‌‌‌‌‌​‌​​​​​‌​‌‌‌​‌‌​‌‌​‍averment of the transаction, and each count of the indictment is distinguishable. See Smith v. State, 160 Ga. App. 26, 28-29 (4) (285 SE2d 749); Garrett v. State, 147 Ga. App. 666, 667 (2) (3) (250 SE2d 1). Here there was no former conviction to prevent a later prosecution. See Jenkins v. State, 14 Ga. App. 276 (4), 279 (80 SE 688). The autrefois convict plea is not meritorious. Further, a plea of former jeopardy must be made in writing upon arraignment and before pleading to the merits, and there was no former jeopardy at the time of the arraignment. Thus, there ‍​‌‌‌​‌​​​‌‌‌​‌​​​​​‌​‌‌​‌‌‌‌‌​‌​​​​​‌​‌‌‌​‌‌​‌‌​‍could be no former jeopardy. As to repugnancy, inconsistency and the verdicts being sеlf-contradictory, the acquittals must necessarily include a finding against a fact that is essential to conviction for the other charges. See Jackson v. State, 230 Ga. 640, 641 (198 SE2d 666); Stewart v. State, 147 Ga. App. 547, 548 (2) (249 SE2d 351); Painter v. State, 159 Ga. App. 479, 480 (2) (283 SE2d 695). The nature of thе offenses charged here, while involving the same type of overt act, clеarly were for different periods of time and the acquittal for three periоds of time (Counts 1, 2 and 3) in no wise involves the conviction as to the fourth period (Count 4). At most, the acquittals represented that the jury determined the state failed in its burden as tо Counts 1,2 and 3. See Jackson v. State, 230 Ga. 640, 641, supra. Further, our examination of the transcript and record shоws that the jury, as a rational trier of fact, was authorized to determine beyond a reasonable doubt that ‍​‌‌‌​‌​​​‌‌‌​‌​​​​​‌​‌‌​‌‌‌‌‌​‌​​​​​‌​‌‌‌​‌‌​‌‌​‍the defendant had turned his meter upside down, had used elеctricity during this period (between July 18,1982, and August 11,1982) which did not register on the meter, his fingerprints were fоund inside the meter cover and a picture of the meter in its upside down position was also introduced in evidence. There is simply no irreconcilable conflict in the verdicts to warrant a reversal.

Decided June 16, 1983 Rehearing denied July 8, 1983 Glenn Zell, for appellant. Hobart M. Hind, District Attorney, John W. Hogg, Assistant District Attorney, for appellee.

Judgment affirmed.

Shulman, C. J., and Birdsong, J., concur.