*1 ground on the that was point objection says . [At because and was overruled the, issue in the ultimate involved party.] witness was that document? money Dr. Nix owing admit
Q. you Do says? that document That’s what A. Under this document? Q. Yes.
A. Yes.” probably was defendant’s answer agree are inclined
We to an was, clearly it would amount insofar as it responsive. But prohibition fall within and would interest against admission issue. testimony the ultimate involving is not meritorious. of error remaining enumeration Carley, J., J., and concur. Birdsong, P. Judgment affirmed. 8, 1985. Decided March Harris, Jr., Gerard, appellants. James P. Stanley E. Tatum, for appellee. M. John THE STATE.
69003. SMITH v.
(327 SE2d Presiding Judge.
Birdsong, Smith, old, years fourteen Christopher David now appellant in bar to his trial for appeals court’s denial (He guilty tried and found capital offense of armed offense.) grounded in the contention that double vehicle theft charges against Smith for motor jeopardy attached when days court trial. were heard in court four before the March appellant charged The crimes with which occurred hours, early appellant escaped hospital 1984. In de- morning a.m., and, stole a Douglas County approximately tention 7:00 later, country pick-up appellant an hour went into a truck. About and, truck, using storekeeper he had shot the gun store found himself, open register appellant the back. Unable the cash it, storekeeper open process forced the wounded and was quickly money from it entered. customer taking customer store; companions appellant saw the withdrew from the off. copied tag appellant run outside and the truck’s number as drove arrested, found, appellant The stolen an officer truck was who call. answered later, Monday, felony warrants were issued days
Two on March robbery, and motor appellant aggravated assault charging appellant Tuesday, At committal hearing vehicle theft. counsel were the state seek an indictment advised supe- of which the being charged (see rior court had concurrent 15-11-39). accepted judge day, following offense. March charged taken before the court and with motor vehicle theft. *2 12, robbery. On On March appellant March was indicted court called the case and continued it until March appellant’s April and at motor again request until when the vehi- true, cle charge although theft was heard and found an adjudication of appellant “delinquent” whether until later reserved date. court, At this juvenile hearing, objection, over heard evidence of events, sequence the entire of the armed including in bar in April robbery supe- was filed 13. The armed was called rior 16 April court and the double Held: jeopardy plea denied. argues
1. The in exposed state effect case that this has serious proceed defect law which forces the state two separate actions, acquired where the court first jurisdiction of court, one offense left and the other offenses to the juvenile proceedings were under strict time limitations which appellant control, could waive or hold the juvenile hearing appellant threw the into the superior and foreclosed jurisdiction from exercising try appellant capital for the of- Obviously, fense. present problem those circumstances wherever two courts with prosecute concurrent seek to for the same See, State, e.g., conduct. Brock v. App. 146 Ga.
442); 864). D., see In re T. E. 169 App. Ga. But in case, robbery offense of armed by tried court and by court, theft of motor vehicle clearly heard (OCGA (b) (1)) did not and, arise from “same conduct” moreover, prosecution required proof of required facts not Id. other. court was careful assume jurisdiction over nothing robbery but the armed the storekeeper; equally careful assuming jurisdiction of the motor vehicle theft eschewing jurisdiction aggravated assault storekeeper. prosecutions prosecutions” were not “successive barred by OCGA and it they “multiple follows that were not prosecutions” State, by barred 16-1-7. See Brock v. see supra; 475). State, distinctly McCrary
This case is
different from
App.
567),
151),
affirmed 253 Ga.
which the entire
part
series of offenses were
one continuing
transaction,
related
all involving
appellant
same conduct
in attempting to
police.
nothing connecting
elude the
There is
robbery
motor vehicle
except
theft and the armed
in this
arrived
and left the scene of
appellant
immaterial
fact that
intent
different criminal
robbery
Distinctly
in a
vehicle.
stolen
in-
offense,
distinctly
conduct
any
different
in each
is involved
did
Proof of each
and different witnesses.
volving different victims
any
reject
Brock v.
We
other.
require proof
vehicle, every
however unre-
act
that when one steals
contention
of that
possession
which he commits while
independent
lated and
fact,
is,
of the same conduct and
single
virtue of that
vehicle
mo-
as the
of the vehicle.
continuing transaction
theft
offense of
already
completed
had
been
tor vehicle
offense of
Breland v.
robbery
was committed.
153).
court did not have
fact
of it
preclude
receiving
did not
evidence
theft and the series
transactions
connection with
Favors
appellant’s capture.
led
See
886).
April
supe-
13 and the
filed his
bar on
16, whereupon appel-
rior court armed
trial was called
*3
day. In
plea
appeal
This
was filed that
lant’s
denied.
notice
appeal
to trial
the trial court ruled that “the
proceeding
sufficiently
filed
in
as not
consti-
has not been
advance of
(Emphasis supplied.) We think it
that
delaying
tute a
tactic.”
obvious
v.
in Patterson
by this
trial court
to track the language
intended
(287
7),
State,
denying
plea
SE2d
that an order
a
248 Ga.
(which appeal
as
jeopardy
directly appealable
double
therefore acts
supersedeas)
plea
automatic
“where
§
sufficiently
delaying
in
filed
advance
trial so as not
constitute a
“ap-
(Emphasis
ruling
to refer to
supplied.) Interpreting
device.”
harm,
find
peal”
“plea”
any
instead of
makes no sense. In
proceeding
either
the trial court’s stated reason for
to trial without
“plea”
delaying
supersedeas
apparent
ruling
or
a
device,
have
on merits
find no merit
plea
since we
heard the
(302
State,
697),
v.
reversed
App.
it.
165 Ga.
811-812
Murff
267).
State,
v.
on other
Decided March Word, appellant.
Reuben M. McDade, Winn, Attorney, Frank C. District J. David Assistant Attorney, appellee. District concurring specially. Judge,
Beasley, protection provide jeopardy, In order to full double a may appeal a a direct from denial provides law file sufficiently in advance a “where the was filed such bar v. Patterson delaying of trial so as not to constitute device.” 7) (1982). is in as regarded It this sense (a) (1). falling within the See judgment scope final OCGA § 108) (1983); Mc- Rogers also cf. Wil- Cannon Davis, Ga. 411 SE liford State, supra, Supreme In Patterson held Court appeals pleas jeopardy from orders are di denying (a) (now rectly Ann. appealable under Code OCGA 5-6-34 (a) (1)) “(a) . . . provides: Appeals be taken . All judgments, say, final that is the case is no longer pending where ”1 below, except provided the court Code Section 5-6-35. provides appeal law further that the notice of serves as a supersedeas in criminal cases “where a sentence of death has been imposed where the defendant is admitted to Although bail.” OCGA 5-6-45. here, present neither instance is in Patterson expressed rationale for allowing appeal direct in double supplies denials ne cessity for the of appeal supersedeas notice to act as in such cases Otherwise, also. impose proceeding trial would and consti significant tute portion very plea, harm which defendant’s valid, cases, designed prevent. Thus in civil ap the notice of peal supersede judgment deprive would appealed but the trial court as to case other matters Carlin, affecting judgment on Cohran v. Walker, See Walker v. 263) (1977): appeal “a notice judgment deprives to final
trial court of proceedings to take further towards the en judgment superseded.” forcement of the Obviously, trying defendant bar, would avoid the if there one. appeal
The notice of *4 was filed as soon as the court denied the plea in day, i.e., April 16, bar and on the same 1984. proceeded
Defendant a The State argues direct right defendant had appeal the court because trial found that the plea sufficiently was not filed in advance of trial as so not court, however, to constitute a The delaying tactic. finding. order, made no such April What is stated in its after not- ing that the defendant had filed a of appeal, notice was that “the appeal has sufficiently not been filed in advance of trial so as not to apply latter section does not here. Thus, not (Emphasis supplied.) it does delaying tactic.” constitute a delay. plea finding make a the the itself relating plea the as Even if were to read order denial, plea the record shows that appeal than the rather juvenile hearing after promptly. day filed court defendant had a reasonable doubt that beyond 12 at which it found defendant engaged conduct constituted though juvenile in bar in court. Even filed delinquency dispo- well expressly adjudication court withheld apparently felt he had to delinquent, defendant sition determined superior court trial plea immediately, prevent file in order to proceed- imminent juvenile it was on armed because (The May apparently latter hearing were for final until ings reset transpired.) never appeal
Thus should have been decided before appears it aspect of rem- proceeded, preserve significant so as to i.e., preven- edy jeopardy plea, which attaches a valid double prosecution. tion of successive proceed “as here, out, trial to ordering
But as it turns the error merit. scheduled” is harmless because the without both involving Due the case wherein to the nature of acted, statutory court and the court have OCGA 16-1-7 provisions regarding apply. do § only to “prosecutions” and OCGA and “convictions” relate 16-1-8 very proceedings purposefully court and “crimes.” attorney categorizations. do not include such district actions “delinquency based on conduct proceeds by “petition” alleging laws, . .” public . designated a crime or offense under 15-11-25, whether the child adjudicates OCGA 15-11-39. court §§ act,” OCGA 15-11-39 delinquent committed “the not a “crime.” §§ (b), prohibited the case has been 15-11-33. “Prosecution” unless from the court. OCGA appropriate transferred to (c). “disposes” of the case after determin- 15-11-39 needed; treatment, rehabilitation, supervision ing whether most 15-11-35. And does “sentence” the child. §§ all, pro- telling disposition or other adjudication order of “[a]n . .” OCGA ceeding chapter is not a of a crime. . conviction (a). valid, on either plea, if must therefore be bottomed Defendant’s States, In his or of United or both. the constitution of the state court, invoked Fifth plea before the and “the Fourteenth Amendments to the United States Constitution Constitution, I, Paragraph Sec. XV.” XV of I, Art. Par. corpus inapplicable. latter relates to habeas section, primarily on the code argument was based Defendant’s
733
I
both
and here
applied.
which do not believe
However he cited
below
Court,
Jones, 421
Supreme
Breed v.
opinion
one
of the
States
United
346)
(95
(1975),
44
1779,
proposition
U. S. 519
SC
LE2d
protect
a defen
jeopardy provision
designed
the federal double
being
pre
dant from
more than
time for his actions and
tried
one
vent
Keener
expense
continuing
of
trials. See
(230
846)
v. Es
(1976), cert. den.
Although
petition
before the
court alleged
that court over
objection
defendant’s
heard evi
dence
transaction,
about
whole
events from the
truck,
defendant’s
stealing
stop
with it at the store where
him,
robbed
clerk
getaway
car,
and shot
in the
his capture
involving it. The
relatively
entire
short course of conduct was taken
account,
into
state,
the insistence of
regarded
it as one
series of
though
events. Even
a different statu
tory
other,
one is not a lesser-included offense within the
Vitale,
Illinois v.
the case of
S.
447 U.
SC
228) (1980)
LE2d
proof
indicates that where
of one is relied on to
other,
prove the
defendant has a
substantial claim double
under the Fifth and Fourteenth Amendments
U. S. Constitu
Ohio,
tion. See
Brown v.
U.
S. 161
SC
53 LE2d
187) (1977),
629)
and State
Burroughs,
Here the truck the armed *6 prosecu- the successive separate were offenses. Therefore clerk two constitution, principles would violate the of the federal tions not prosecutions successive prohibit multiple convictions well as the Fifth and for The crucial issue under Four- the offense. prosecution for the conviction or is teenth Amendments whether transaction constitutes a “same offense.” Where the same act or the statutory provisions, of two offenses one the test violation two which the other does requires proof of a fact provision whether regardless overlap test be substantial not. Such satisfied Ohio, supra; Brown Illinois proof establish the crimes. used to Vitale, Here, supra. juvenile judge heard evidence of although considering charge when of motor vehicle latter. And say prove was used to cannot former yet juvenile disposed since the not has case, it took into ac- disposition theft cannot be said that there punished robbery aspect count and behavior. have had pointed
It should out that court could be robbery charge to which was sub- consider also the superior court. OCGA sequently tried before §§ (b). Clack, Hartley v. The State’s reliance on 63) (1977) (1976), Relyea deprived proposition oppor- for the that the court was tunity taking jurisdiction robbery charge, of the armed mis- placed. say by As recited these cases that whichever court jurisdiction “may” first takes retain it.
When the court on March 3 advised defendant felony held in the warrant had been filed and ordered defendant center, thereby youth development attorney not de- the district prived subsequent in the right peti- to include armed to, instead, in the court. he obtained tion He chose not an It that brought indictment court. actions robbery which to court for on armed al- possession of the motor legedly occurred while defendant was still before, he less an hour and which he resumed vehicle had stolen than use, and which he had found have been stolen. trespassory act in continuing was a the sense that
possession proceed- two separate still I do not see how occurring. in the same inter- ings separate two courts for the acts committed hour, events, an occurring all twined interrelated course circumstances, any intervening in time or and with a with break intent, criminal would not constitute double procedural aspect, prosecutions statutory bars successive public policy against to serve the of an accused.2 See harassment before, statutory proscrip State But as said apply do the juvenile proceeding. tions If Smith had an been adult and was first tried and convicted of jeopardy plea the motor vehicle theft and then a double trial, when a second for armed prosecuted, been ground application have on firmer because of the of OCGA 16- (b).3 The 13-year-old situation is different involves child, despite treating the fact that it means that the the of fender as a child concerning the motor vehicle theft and as an adult It concerning person would seem that the is either respect or the other space one his conduct an hour the morning of March 3. proceedings against The two prohibited by were law. *7 NEWSPAPERS,
69122. ARNOLD v. ATHENS INC. et al. 845) Judge. Beasley,
Plaintiff an brought damages action for against defendant newspaper corporation as a result of an incident which she was sexually The complaint liability assaulted. on the alleged part placing negligently plaintiff in a dangerous situation injuries which resulted she original received. The action was G.R.B., Arby’s the defendant Inc. Beef on Roast d/b/a premises whose However, the assault occurred. that defendant was prejudice part dismissed without and has no in this After defendant’s answer was filed and both sides utilized various 2 agree majority aspect I jeopardy, the substantive of double which bars multiple convictions, Pearce, is not violated here. Cf. North Carolina v. 395 U. S. 656) (1969). may SC prosecuted arising LE2d An accused be crime conduct. 232 Ga. at That does not mean that he be tried McCrary, prosecutions. for these crimes in several successive See State v. 151) (1985), decided on the basis statutes and not federal constitution. statute, Under the nature of the entire transaction was a course con- duct. See Henderson All of the offenses prosecuted which arise out the same course of action and at the same time must be to- Brittain, gether. Stowe, State v.