Bobby Head appeals from a conviction of violation of the Georgia Controlled Substances Act for selling 15 tablets of methaqualone. Held:
1. The trial court did not err in denying appellant’s request for funds for appointment of experts to study the petit and grand jury selectiоn process for challenge. The appellant was not shown to be impoverished and entitled to public funds. The trial court’s discretion in appointment of experts was not abused.
Patterson v. State,
2. Appellant contends the trial court erred in overruling appellant’s demurrer to the indictment and motion for directed verdict on grounds that since both the Controlled Substances Act (Code Ann. § 79A-807 (b)) and the Dangerous Drug Act (Code Ann. § 79A-703) proscribe and punish the offense of sale of methaqualone, appellant was entitled to be indicted for and convicted and punished for the offense as a misdemeanor under the Dangerous Drug Act. The trial court did not err. The offense of sale of methaqualone as proscribed and made a misdemeanor by the Dangerous Drug Act, Title 79A-7, is not an included offense of the sale of methaqualone аs proscribed and made a felony by the Controlled Substances Act, Title 79A-8. The purposes of the two Acts and the legislative intent in enacting them are different. Different facts and elements must be proved when proving the offense under either Act (Code Ann. § 26-505) even though the sale оf methaqualone is the gravamen of each offense. The Controlled Substances Act in operation at the time of the offense in this case made clear that the penalties of the Act were intended to supervene any other penalties or sanctiоns otherwise authorized by law; although the statute refers to civil penalties, it is clear the legislature intended that no conflict was to be inferred between the penalties of the Act and any other penalties of the law. See Code Ann § 79A-823. The state indicted appеllant for violation of the Controlled Substances Act as was its right, and since sale of methaqualone under the Dangerous Drug Act is not an included offense, appellant had no vested right to be tried for that offense and no right to be sentenced as for a misdemeanor. We dо not have here “two sections of a statute providing punishment or penalty for the same act or offense,” where the section providing the lesser penalty should prevail.
Aycock v. State,
*5 3. Appellant was not entitled to a dismissal on the grounds that the state and its officers who made the case had a personal and pecuniary interest. Motives and personal interests of all witnesses are subject to examination in the proper case, are matters of impeachment only, and go only to the credibility of the witness. For the same reasons, appellant was not entitled to a new trial on newly discovered “evidenсe” concerning activities and policies of the GBI. Such “evidence” was comprised of newspaper articles. See Rules and Regulations of the State Bar of Georgia, Directory Rule 7-106(c)) (1) (7); Ethical Consideration 7-4g.
4. Appellant was not entitled to suppression, as irrelevant, of evidence tending to show flight.
Curtis v. State,
Appellant was not entitled to the charge that flight to avoid arrest is not inconsistent with innocence, because the jury could determine that appellant’s flight was inconsistent with innocence. Likewise, the appellant was not entitled to be instructed that eyewitness identification is inherently unreliable. That is not the law. The jury was well and fully charged as to its obligations with regard to credibility of the witnesses, and as to the burden of the state to prove its case beyond a reasonable doubt.
Heard v. State,
5. Appellant was not entitled to dismissal of the indictment or other relief on grounds that he had been excluded from a proceeding in which the trial judge heard a motion and chastised defense counsel, while accusing counsel of violating appellant’s rights. The record clearly shows that if appellant was excludеd from any proceeding it was because his own counsel presented a motion in the appellant’s absence after the appellant, in effect, sought to be excused because of physical discomfort. Moreover, no harm was shown. (See, as to аppellant’s presence at proceedings,
Davis v. State,
It is well settled that bias or prejudice of a trial court against a party’s attorney is not per se grounds for disqualification of the judge from the case.
Mann v. State,
6. Defense counsel’s conduct of voir dire was not improperly limited. The defense was not entitled to ask whether the jury would be able to follow the instructions of the trial court
(Smith v.State,
*7 Directly contrary to the assertion of the defense, the transcript plainly shows the trial court never at any time “importuned defendant to waive his own presence and assistance of counsel in selecting the jury or conducting the voir dire.” The record clearly shows that when the case was first called for trial, defense counsel asked for a continuance based on the appellant’s having hаd a tooth pulled. The trial judge pointed out that he was scheduled to try cases in other counties for the remainder of the term and that the next term of court was six months away, and then the trial judge indicated concern for appellant’s right to speedy trial. Defense сounsel said appellant would be ready for trial “tomorrow.” The trial court asked: “Is he in shape to pick a jury this afternoon?” Appellant’s counsel responded: “I don’t believe he is, Judge, but we — if I could consult with him or he might be willing to waive his being in shape to do that.” (Emphasis supplied.) The judge then suggested counsel confer with his client; counsel did so and then requested the jury be picked the following day. The trial judge said: “The bond just went up to $50,000 and I will pick the jury tomorrow.... I may not get to this case this week but I will increase the bond to $50,000. You may go with the Sheriff.”
To this, defense сounsel contends on appeal that the trial judge’s “threat to hold defendant’s trial off for six months, raising his bond, asking him to waive either his presence or competent counsel while picking the jury . . . will dispel any notion that his purpose [in excusing the ailing appellant from the сourtroom] was to assure the defendant’s physical comfort . . . [and] hardly bespeaks a benign purpose.”
Under no rational view of these proceedings can it be imagined that the trial judge importuned the appellant to waive presence of counsel whilе picking the jury, or threatened to hold the trial off six months. We view with serious disfavor, as trifling with this court and subject to contempt, arguments of counsel which attempt to misrepresent or distort occurrences so as to gain appellate advantage, and the more so whеre the object in doing so is to prejudice this court against the integrity or motives of the trial judge. (See State Bar Rules & Regulations, Rule 3-107, EC 7-1; Rules of Court of Appeals, Rule 10.)
7. Appellant was not entitled to suppression of the identification of him by two GBI agents on grounds that their identificаtions were tainted by viewing him as he was brought into the courtroom for trial. This contention would prevent a trial from ever taking place with the defendant present. There was no substantial likelihood of misidentification in this case. See
Bradley v.
State,
*8
8. Appellant contends that reversible еrror is contained in several arguments and statements of the district attorney. The district attorney asked one alibi witness: “Do you think we want to waste our time charging innocent people?” The district attorney was attempting to impeach the alibi witness’ testimony by showing that the witness, a good friend of the appellant, failed to advise the prosecution that appellant had been at a birthday party instead of at another juke joint selling methaqualone. The question was ill-formed and argumentative, but it was not error. See, as to impeachmеnt value,
Johnson v. State,
9. Appellant’s sentence was within statutory limits.
Jones v. State,
10. Appellant contends the trial court erred in denying defendant’s request for impeaching information and in refusing to dismiss the proceeding or grаnt an extraordinary motion for new trial when it was discovered that the prosecution had withheld information corroborating defendant’s alibi and had then argued that the absence of that very corroborating evidence pointed to guilt. There is clearly no error. The аffidavit submitted by appellant’s counsel purporting to show newly discovered evidence is insufficient to serve as grounds for new trial. Among other requirements, “the affidavit of the witness himself should be procured or its absence accounted for.”
Bell v. State,
Judgment affirmed.