*1 compensable and therefore non-physical the Act one, is ais remedy Act. of the exclusive cases, not barred wrongful only however, a claim for involved Each of these problem injury. non-physical Larson notes Professor detention, hand, is a where there case at of the factual situation in the inherent claim injury imprisonment is essence of the where the but for false physical tort, is non- compensable, of the “If the essence harm. non-physical sort, injuries with physical, physical weight, usual are of the if the injuries injury being a make- to the list at most added of the action if the essence be barred. But suit should not physical injury recovery barred death, action should be for is even it can normally non-physical 2A tort.” in the form of a be cast (a), Compensation, § 68.34 at Larson, Workmen’s The Law of 13-117 also id. at See 68.31. physical injury hand involves in the case at The claim appeal, plaintiff imprisonment. an admira- makes On as false as well only part argument to which relates of the claim that at least that ble the imprisonment allegation the Act. not be barred should of false inextricably imprisonment, however, linked is false The claim for damages injury physical In this and death. the claim imprisonment detention, itself, alleged are not false from but the exacerbation physical employee’s a result condition as during opportunity being seek medical attention denied injury physical wrongfully is a cannot be This detained. in which she was any recovery injury compensable split for her and thus claim compensation That action. and a workers’ between tort action compensable essentially injury Act under the one which is the would also bar agree plaintiff’s reason, I that the RICO claim. For judgment must be affirmed. of the trial court March Decided April 3, denied
Reconsideration Sanders, Wilson, Jr., Wilson, Carmel & James 0. W. Oldfield appellant. Lessinger, appellees. Merritt, McLain & Howard M. HARPER v. THE STATE. A91A1774. Judge. single in a indictment arraignment his he offenses. At the time of and several other succeeding . . . under “within the next term
filed a demand for trial succeeding expired . term without . .” The next OCGA 17-7-170. following during being tried, term he filed a motion for his acquittal. judge denied the motion based on a The trial applicable § 17-7-171 was to the case that OCGA determination appeal 17-7-170; and this followed. than OCGA rather *2 (b), person charged by § indictment or OCGA 17-7-170 a Under affecting “an offense not his life” who thereafter accusation with acquittal trial is entitled to and makes a valid demand for he is not mand is succeeding term of court after the de- tried within the next juries impaneled “provided filed, at both terms there were qualified try However, if to him.” the defendant is indicted for a applies “capital offense,” § § OCGA 17-7-171 rather than OCGA then required try 17-7-171, § the state is the defendant 17-7-170.Under “provided made, next two after the demand is that within the terms impaneled qualified try juries [him] were at both terms there and provided, announcing further, [he] that court ready requesting for trial and a trial on the indictment.”
Although
specifies
robbery
§
that armed
is
by
punishable
Georgia Supreme
applying
death,
Court,
the ra-
(97
982)
Georgia,
2861,
of Coker v.
U. S.
LE2d
tionale
433
584
SC
53
(1977),
longer
has held that the death
no
be
(236
State,
400,
v.
this offense. See Collins
239 Ga.
402
403
SE2d
759) (1977).
appellant
robbery consequently
contends that armed
may
capital
longer
no
be considered a
with the result that
§
§
OCGA 17-7-170 must be
to this case rather than OCGA
cap-
However,
“[a]
17-7-171.
Court has further held that
[OCGA § 17-7-171]
ital offense within the terms of
defined
refers to offenses
by
capital
necessarily
offenses,
statute as
offenses for
actually
penalty,” Cleary
which the state could
does seek
(366
677) (1988);
State,
203,
v.
258 Ga.
204
SE2d
and in reliance on
previously
robbery
statement,
that
this court has
held that armed
purview
§
continues to be a
offense within the
of OCGA 17-7-
(414
App.
State,
v.
171. See White
202 Ga.
370
SE2d
(256
79) (1979)
App.
State,
Accord Simmons v.
149 Ga.
830
SE2d
(decided
27-1901.2,
§§
Ann.
former Code
27-1901.1 and
17-7-171).
statutory predecessors
State,
§
v.
to OCGA
See also Orvis
(226
570) (1976), approving
holding
SE2d
this court’s
(199
270) (1973),
App.
State,
Letbedder v.
196
robbery
did not cease to be a
offense within the con-
templation
during
§§
Ann.
of former Code
27-1901.1 and 27-1901.2
the
state
which the death
could not be
this
virtue of the United States
Court’s decision
(1972).
Georgia,
Furman v.
P. P. concur. Cooper, JJ., dissent. Judge, dissenting.
Beasley, respectfully I was entitled to dis- dissent because the acquittal charge § OCGA 17-7-170 that he was not “ac- under subject
cused of a offense” and thus to OCGA 17-7-171. A in this state or it is not. It crime is either a offense particular apply cannot be both. It is too serious a distinction to crime when a ing to a apply rule is at issue and not when sentenc- counsel, Defendants, bar, is at their the bench and and the issue. pre- general public pare by lengthier must know. The for the State to following for trial which is for trial an accused’s demand allowed only applies OCGA 17-7-171 offenses. (b) provides person that a convicted of armed punished imprisonment. Nevertheless, “shall be death” or Georgia 1977,' Court of concluded when the statute
also authorized the death that because of intervening Georgia Supreme decisions of the United States Court and the
Court, “the death not be robbery being present Georgia [armed one] these crimes stat- utes.” Collins held that convictions utes are no tional 239 Ga. It present Georgia “under stat- appellate jurisdic- convictions of felonies for purposes,” specific which was the issue before it.
At that time the
Constitution conferred
on
capital felony.”
“in
that Court
all cases of conviction of a
wording
changed
Const.,
VI,
II,
Art.
Sec.
Par. IV. The
the 1983
provides
jurisdic-
Constitution, which now
Court’s exclusive
“(a)
tion
11cases in which a sentence of death was
or could
imposed.”
Const.,
VI,
VI,
Ill
Art.
Sec.
Par.
State
Gregg
decision referred to is
aff’d
tal the Court Collins the definition first set out (1) 66) (1906): Caesar v. SE “In our view expression ‘capital felony,’ merely the when used our de- scriptive penalty of those felonies to which the death is affixed as a punishment given distinguish under circumstances to such felonies from that class in which under no circumstances would death ever be penalty inflicted as a for the violation of the same.” Thus the Court recognized judicial Eighth that the construction of the Amendment in (b). “by effect emasculated the words death” from OCGA 16-8-41 penalty, legislature, judicially The which was “affixed” the was Assembly, General statute, of the which is an act The void. rendered must Constitution, yield constitution, the Federal in this case to the interpreted. judicially “capital offense,” very which of Thus, of the essence the imposable penalty law, was eliminated under to the maximum refers robbery. consequence of armed or as a characteristic (III (2)) (238 SE2d in Peek so stated Court given 12) (1977): penalty for armed no can “[T]he death “practice of robbery. retain the no more than .” In Peek it did . . aggravating- recognizing offense under (b), § 17- OCGA [§ now Code 27-2534.1 circumstance felony’ ‘capital merely (b)], term is as that “construe[d] . . .” It 10-30 (b) (2)] generic (b) (2) in a § 17-10-30 [now OCGA §in 27-2534.1 used sense the time this time at crimes which were those felonies to include That was enacted.” statute death
section of our pp. 159, 172, Collins did not L. See Ga. was 1973. jury is consider- when a Peek means that Thus until 1977. come ing may sought, consider it is in a case which death statutory aggravating the offense was the fact that circumstance as a committed armed only engaged of in the commission the offender was while (2) felony” robbery. are in subsection The words language said, “generic” Court as the or
shorthand purpose that subsection. of applied in Collins is was from Caesar as If definition the same issue,1 is at it will lead here, matter another where in which in “that class is a crime result. Armed to the same penalty be inflicted as a death ever no circumstances would under the violation of supra same,” Caeser, Geor- at portion gia Caeser which law. It is that and constitutional statutes regard emphasized Court, the “af- which did not worthy course, language at the of mention. Of Caeser even fixed” pen- legislatively-provided Caeser, decision time of the alty legal. Cleary re- does not quire with both were result. Defendants a different among including non-capital felonies, them armed governed question 17-7-171 was whether put category it which did not state for trial. The Court their demand Rowe, State v. in. Nor does its discussion (1976), imply that it considered armed question appellate say, question which court had That is to try defendant are both terms to a criminal has two terms or three of whether the State procedural aspects. question is authorized of what rather than substantive aspect. would be a substantive
780 decided, as a because at the time was the death Rowe penalty robbery constitutionally for armed authorized and our actually dealing court was with a offense. Court overruled Rowe to the extent that its holding
The
Cleary
Cleary
in
in
holding
conflicted. The
is that “where a multi-
offenses,
noncapital
count
indictment
includes both
upon
proper
time
trial
for
demand
a defendant
is the time al-
Cleary,
lowed under OCGA 17-7-171 for the more serious offenses.”
supra
necessary
at 205.
rationale was that
this was
to avoid a
jeopardy
double
on
bar
offense.
State,
Court decided Orvis v.
(226
570) (1976),
robbery
an armed
Collins that
before it
stated
robbery
“armed
alone does not
penalty”
warrant
the death
and “the
death
imposed
robbery]
not be
[armed
Collins,
Georgia Statutes.”
supra at 402. It concluded that the ration
Georgia,
ale of Coker v.
(97
2861,
982)
This that Collins ruling. court has Col- interpreted It has lins as establishing the rule purpose that imposition “[f]or punishment” Davis v. capital felony.” “is not a App. 356, (4) (283 361 See also Scott v. App. Ga. The court in Scott Ivory also followed Ga. “ 435) (1981), proposition for the ‘if possible is not a sen- tence, punishment insofar concerned, the offense capi- tal, and a robbery may be indicted as ” Scott, a recidivist. . . .’ supra at 728. Those three cases involved the punishment, substantive matter of specifically the recidivist en- hancement of for armed general under the recid- statute, ivist 17-10-7, OCGA subsection capi- which excludes tal felonies. 276) (1979), In Garmon of in- allowing waiver rule Court considered OCGA 17-7- According accusation. proceeding on dictment cases, felony all conditions under certain can be done “[i]n held that ...” The Court capital felonies. involving than cases for armed penalty cannot “[bjecause the death felony within the is not a hold that we Id. at 857. first sentence of § 17-7-70].” *6 [OCGA “capital is not a Since, under current except Su- litigated, specific purposes heretofore for the offense” species of a historic language-wise preme Court by OCGA capital offense covered it is not a generically, term used prepare bring time for the State to 17-7-171. The additional apply not to armed because a offense” does trial trial, pun- in such a who has demanded ished with death. Judge Cooper joins
I this dissent. am authorized to state that 20, 1992 Decided March April denied Reconsideration appellant. Peter D. Bond, Eubanks, F. Attorney,
Michael C. District Katherine Thomas, Attorneys, appellee. Richard E. Assistant District CRAWFORD al. v. FREEMAN.
A91A1779. et Judge. Beasley,
Appellant-plaintiffs apartment Riordan and leased C-5 Crawford Sandy Springs Apartments, managed Villa which is owned and by appellee-defendant Approximately plain- Freeman. six weeks after destroyed by fire apartment, tiffs moved into their its contents were heating overheating which was caused unit’s as a result of a subsequent ignition surrounding wiring short the internal Alleging prior knowledge materials. that Freeman had combustible he heating replacement unit was need of and that it, grossly negligent replacing plaintiffs brought this suit damages. him against seeking trial, in- plaintiffs’ sought counsel to admit
At outset of the concerning repair replacement heating and air-con- voices apartments, ditioning units and to cross-examine defendant