text:
    74214.
    ROSENTHAL v. HUDSON.
    (360 SE2d 15)
   Benham, Judge.

Appellant and appellee were embroiled in a neighborhood dispute for several years. The dispute arose when appellant established a business in his house on the street through which traffic flowed to and from appellee’s business. The employees of appellant’s business parked their cars on the street, impeding traffic into and out of appel-lee’s business premises. One of appellee’s employees lived next door to appellant, and appellee would often go to that employee’s home. Alleging that appellee was staring into his windows from the employee’s driveway, appellant swore out a warrant for appellee’s arrest for being a peeping Tom (OCGA § 16-11-61). When that warrant was dismissed by a magistrate, appellee filed a suit for malicious prosecution. Appellant counterclaimed for invasion of privacy and intentional infliction of emotional distress. This appeal is from a judgment entered on a jury verdict for appellee.

1. Appellant’s first enumeration of error concerns the trial court’s refusal to give a jury charge purportedly requested by appellant. Since there are no requests to charge contained in the record of this case, there is nothing to review in that regard. Rewis v. Browning, 153 Ga. App. 352 (7) (265 SE2d 316) (1980).

2. In his second enumeration of error, appellant complains of the trial court’s admission into evidence of testimony calculated to arouse the jury’s sympathy for appellee. The testimony involved was an explanation by appellee of his presence in his employee’s driveway on a regular basis. Appellee explained that he went there to take the employee with him on his daily visits to his institutionalized retarded child. When appellant objected, the trial court noted that appellant had questioned appellee on the subject of his presence in the driveway, then instructed the jury that sympathy had nothing to do with the trial of this case.

As to appellant’s relevancy argument, we find the language of Southern Bell &c. Co. v. Coastal Transmission Svc., 167 Ga. App. 611 (4) (307 SE2d 83) (1983), to be appropriate: “The admission of evidence is a matter which rests largely within the sound discretion of the trial judge. However, ‘The Georgia rule favors the admission of any relevant evidence, no matter how slight its probative value.’ [Cits.] ‘Evidence of doubtful relevancy or competency should be admitted and its weight left to the jurors. [Cit.]’ ”

As to the sympathy objection, we note that after the trial court gave curative instructions, appellant’s counsel thanked the court and did not pursue the issue. “The defendant is not in position to complain of the judge’s ruling because he acquiesced in the ruling. . . . No matter how erroneous the ruling might have been , a litigant cannot submit to a ruling, acquiesce in the ruling, and still complain of same. He is required to stand his ground and fight in order to successfully enumerate as error an erroneous ruling by the trial judge. Acquiescence completely deprives him of the right to complain further; he has agreed that the trial court’s ruling was correct by submitting to it. [Cit.]” Upshaw v. Cooper, 127 Ga. App. 690 (1) (194 SE2d 618) (1972).

3. Appellant questions the sufficiency of the evidence in his third enumeration of error. He centers his argument on the issue of probable cause for the procurement of a warrant for appellee’s arrest, relying on Smith v. Ragan, 140 Ga. App. 33 (2) (230 SE2d 89) (1976), for the proposition that appellant’s testimony that he consulted with a police officer prior to making the accusation establishes probable cause as a matter of law. In Smith, there was no evidence to counter the defendant’s showing on motion for summary judgment that probable cause had existed. In the present case, however, there was ample evidence that the relationship between the parties was bitter and that appellant was motivated by malice rather than by a belief that a criminal law had been violated. Even when one seeks professional advice before swearing out a criminal warrant, the issue of probable cause is one for the jury. Bailey v. Century Fin. Co., 118 Ga. App. 90, 91 (162 SE2d 835) (1968).

4. Appellant next contends that the trial court erred in permitting the jury to return an “improper verdict” and in failing to thereupon declare a mistrial or direct a verdict for appellant. This enumeration of error refers to the jury’s initial return of a verdict awarding appellee punitive damages only. After instructing the jury that punitive damages could not be awarded unless accompanied by an award of actual damages, the trial court ordered the jury to continue its deliberations and to determine whether appellee had suffered any actual damages before rendering its verdict.

It was not error to give the jury additional instructions and to have it reconsider its original verdict. Colonial Stores v. Fishel, 160 Ga. App. 739 (2) (288 SE2d 21) (1981). Nor was it error to fail to grant a mistrial or to direct a verdict since no motion for either relief was made. See McLemore v. Andrika, 121 Ga. App. 527 (2) (174 SE2d 371) (1970). Furthermore, since appellant’s counsel stated, when asked, that he had no objection to the content of the trial court’s additional instructions, he may not now raise such objections. Dept. of Transp. v. 2.734 Acres of Land, 168 Ga. App. 541 (2) (309 SE2d 816) (1983).

5. When the jury asked for a recharge on the meaning of the word “malicious,” the trial court used a definition from Black’s Law Dictionary: “wrongful and done intentionally without just cause or excuse.” When appellant’s counsel insisted that the concept of lack of probable cause be included in that charge, the trial court recalled the jury and modified the definition, leaving the jury with the definition, “wrongfully and done intentionally without probable cause.” Appellant’s counsel continued to except to the charge, contending that it was confusing. In light of the trial court’s extremely thorough charge on probable cause and the recharge on the definition of “malicious,” we find appellant’s contention in that regard to be without merit. “On review the charge must be considered as a whole and each part in connection with every other part of the charge. [Cit.] A charge, torn to pieces and scattered in disjointed fragments may seem objectionable, although when put together and considered as a whole, it may be perfectly sound. The full charge being in the record, what it lacks when divided is supplied when the parts are all united. United they stand, divided they fall. [Cits.]” Robert & Co. Assoc. v. Tigner, 180 Ga. App. 836, 841 (351 SE2d 82) (1986).

6. During closing argument, appellant’s counsel objected to an argument by appellee’s counsel and moved for a mistrial. The trial court stated on the record that the argument was improper and, upon appellant’s counsel’s insistence, rebuked appellee’s counsel. The trial court denied appellant’s renewed motions for mistrial then and again after argument was completed and the jury had been released for the day. The trial court offered to give further curative instructions, but appellant insisted on his motion for mistrial. Nonetheless, the trial court, when the trial recommenced the next morning, did give further curative instructions. We find no abuse of the broad discretion which a trial judge has in passing on motions for mistrial. See Wilkes v. Dept. of Transp., 176 Ga. App. 739 (1) (337 SE2d 404) (1985).

7. In his seventh enumeration of error, appellant claims that the trial court erroneously refused to give appellant’s requested charge on invasion of privacy. Since, as we noted in Division 1 of this opinion, requested charges are not part of the record on appeal, there is nothing to review. Rewis v. Browning, supra.

8. Appellant’s eighth enumeration of error concerns the admission into evidence of the warrant pursuant to which appellee was arrested. His contention that the warrant is inadmissible is controlled adversely to him by Sloan v. Glaze, 72 Ga. App. 415 (5) (33 SE2d 846) (1945).

9. In appellant’s final enumeration of error, he contends that the trial court erred in admitting the testimony of several witnesses and in admitting certain photographs. The basis for his contention is his assertion that the evidence was all irrelevant. We disagree.

Decided July 1, 1987

Rehearing denied July 15, 1987

E. Marcus Davis, for appellant.

George C. Chenggis, for appellee.

“[Evidence] is relevant if it relates to the questions being tried by the jury, either directly or indirectly, tends to illustrate or explain the issue, or aids the jury in arriving at the truth. [Cit.]” Bituminous Cas. Corp. v. Mowery, 145 Ga. App. 45 (1) (244 SE2d 573) (1978). The testimony and the photographs were offered for the purpose of demonstrating the rancorous relationship between the parties arising from the dispute concerning appellant’s use of his residence as a business location and the impact of that use on appellee’s business. Considering that the primary motive offered by appellee for appellant’s conduct in having appellee arrested was personal animosity, we find the evidence highly relevant.

The case on which appellant relies, Atlantic Zayre v. Williams, 172 Ga. App. 43 (4a) (322 SE2d 83) (1984), is clearly inapposite. Appellant cites it for the following proposition: “In a controversy between two persons regarding a given subject matter, evidence as to what occurred between one of them and a third person with reference to a similar, though entirely distinct, transaction is irrelevant. [Cit.]” Id. at 46. The present case is the converse: the evidence concerned what occurred between these parties, allegedly with regard to related transactions, and was clearly relevant.

Judgment affirmed.

Banke, P. J., and Carley, J., concur.


source: Caselaw Access Project

author: Pope, Judge.

license: Public Domain

text:
    74302.
    THE STATE v. HICKS.
    (359 SE2d 712)
   Pope, Judge.

Appellee Billy Hicks pro se filed a demand for speedy trial on February 21, 1986, identifying the offense charged against him, theft by taking, by a warrant number. On March 6, 1986 he was indicted for two counts of theft by taking. The case was scheduled for arraignment in May and June of 1986 and an arraignment was finally held on September 10, 1986. Hicks filed a plea in bar on September 30, 1986 and a hearing was held thereon on October 15, 1986. The State opposed the plea in bar on the ground that the demand for a speedy trial was a nullity because it was filed prior to the return of the indictment contrary to OCGA § 17-7-170, which calls for filing after the bill of indictment has been returned. The defense contended that once the indictment was returned the demand began to run, rather than being voided, and thus met the statutory requirements.

The trial court ruled that “the filing of the indictment on March 6, 1986 breathed life into the demand filed on February 21, 1986. The accused did not have to wait until he was formally charged to file his demand. The demand attached itself to the indictment and the provisions of [OCGA § 17-7-170] began to apply on March 6. This means that Billy Hicks was entitled to have the merits of his case heard at either the February term or the May term of Superior Court. They were not. The case of [Andrews v. State, 175 Ga. App. 22 (332 SE2d 299) (1985)] settles the issue of attaching Sixth Amendment rights to a speedy trial to the date of arrest. Surely rights under [OCGA § 17-7-170] to a speedy trial attach upon a merger of indictment and demand. In the case of [State v. Spence, 179 Ga. App. 750 (347 SE2d 612 (1986)] a demand for speedy trial was filed on a traffic citation which had not been filed in the clerk’s office. The Court of Appeals said ‘[that an] accusation embodied in an existing uniform traffic citation is “found” within the meaning of OCGA § 17-7-170 (a) at the moment any court which is lawfully entitled to do so asserts its jurisdiction over the case.’ [Id. at 752; see OCGA § 40-13-3].”

We do not agree with the reasoning of the trial court that the holding of the Spence case is applicable here. “[A] demand for speedy trial pursuant to the provisions of OCGA § 17-7-170 may not be made until an indictment has been returned or an accusation preferred. Fisher v. State, 143 Ga. App. 493 (238 SE2d 584) (1977).” Majia v. State, 174 Ga. App. 432, 433 (1) (330 SE2d 171) (1985). Here, as in Fisher, supra, Hicks was arrested on a warrant and filed his demand from the issuance of the warrant rather than from an indictment or accusation. As this court explained on motion for rehearing in Spence, “[t]here is, of course, no statute analogous to OCGA § 40-13-3 permitting an arrest warrant to be used as a substitute for a formal accusation.” 179 Ga. App. 753, supra.

The purpose of the demand statute is to notify the State of the defendant’s intention to proceed to a trial or be discharged at a subsequent term. Stripland v. State, 115 Ga. 578, 581 (41 SE 987) (1902). If the demand is not filed properly, as set out in the statute, it is possible that the State may not receive proper notice. The statute clearly provides that “[a]ny person against whom a true bill of indictment ... is found . . . may enter a demand for trial. . . .” Therefore, interpreting this statute literally, only a person who has been indicted or otherwise formally charged with a crime can invoke the rights afforded by OCGA § 17-7-170. As stated in Flint v. State, 12 Ga. App. 169, 171 (76 SE 1032) (1913), “The defendant can not demand trial until there is a case in the court which has jurisdiction to try him, — until there has been an indictment or presentment... or an accusation. . . ,” The court in Flint held that swearing out a warrant did not suspend the statute which provides that all indictments for misdemeanors must be filed within two years of the commission of the offense. The reasoning for this was that since the defendant could not file a demand for trial until he was indicted, the State should not be allowed to suspend the running of the two-year statute until the defendant has been indicted.

Decided June 29, 1987

Rehearing denied July 15, 1987

Robert E. Keller, District Attorney, Deborah C. Benefield, Assistant District Attorney, for appellant.

Keith C. Martin, for appellee.

“It is well settled in Georgia law that the protection conferred by the statute, supra, attaches with the formal indictment or accusation. Hall v. Hopper, 234 Ga. 625 (216 SE2d 839) (1975). Georgia courts have further held, however, that over and above the statutory provisions, supra, Sixth Amendment rights to speedy trial attach upon arrest, [cits.]; and, moreover, that the due process clause of the Fifth Amendment also causes these rights to attach coincidentally with arrest. State v. Hight, 156 Ga. App. 246 (274 SE2d 638) (1980).” Andrews v. State, 175 Ga. App. at 23, supra. Thus Hicks was not without a means to procure a speedy trial, he simply utilized the wrong method by prematurely invoking the provisions of OCGA § 17-7-170 rather than the constitutional protections which were available to him. Consequently, the judgment granting the plea in bar must be reversed.

Judgment reversed.

Birdsong, C. J., and Deen, P. J., concur.

       We note that OCGA § 17-7-170 has been amended effective July 1, 1987 so as to provide that such a demand shall be served on the prosecutor and shall be binding only in the court in which the demand is filed, except where the case is transferred from one court to another without a request from the defendant. Ga. L. 1987, p. 841, § 1.


text:
    74284.
    KELLER v. THE STATE.
    (359 SE2d 714)
   Pope, Judge.

Appellant was stopped on April 20,1986 by a Cobb County police officer and issued a “Uniform Traffic Citation, Summons, Accusation/ Warning” charging him with speeding in violation of OCGA § 40-6-181. The citation ordered appellant to appear in court on May 26, 1986 to answer the charge of driving at 58 m.p.h. in a 45 m.p.h. zone, an offense falling within the jurisdiction of the Traffic Violations Bureau of Cobb County as created pursuant to OCGA § 40-13-50 et seq. On April 23, 1986 appellant filed in the Traffic Violations Bureau of Cobb County a demand for speedy trial by jury, identifying the charge against him by “ticket/accusation” number. On May 1, 1986 the Clerk of the State Court of Cobb County, in the capacity of supervisor of the traffic violations bureau, notified appellant that his appearance date had been changed to June 9, 1986 since May 26 was a legal holiday. Appellant’s attorney appeared in traffic court on that date and again filed a demand for jury trial. On June 10, 1986 the Uniform Traffic Citation was filed in the criminal division of the state court clerk’s office and was docketed. Appellant filed a motion for discharge and acquittal on August 7, 1986 in the State Court of Cobb County pursuant to OCGA § 17-7-170, and a hearing was held thereon. It was stipulated that following the filing of appellant’s jury demands there were at the March-April and May-June terms of court jurors impaneled and qualified to try appellant, and that appellant was not placed on trial during either term. The trial court denied appellant’s motion for discharge, ruling that no accusation could be found against him under OCGA § 17-7-170 while the case was still within the jurisdiction of traffic violations bureau and, thus, the jury demand was prematurely filed. This appeal is brought from that judgment.

A demand for speedy trial pursuant to the provisions of OCGA § 17-7-170 may not be made until an indictment has been returned or an accusation preferred, and it has been settled that a Georgia Uniform Traffic Citation, Summons, Accusation/Warning issued pursuant to OCGA § 40-13-1 itself contains the accusation. OCGA § 40-13-24; Majia v. State, 174 Ga. App. 432 (1) (330 SE2d 171) (1985), aff’d, 254 Ga. 660 (333 SE2d 834) (1985). OCGA § 17-7-71 provides that misdemeanor cases may be tried upon an accusation, and OCGA § 17-7-70 also allows certain felony cases to be tried upon an accusation. However, OCGA § 40-13-60 specifies that “[a]ny traffic violation under the jurisdiction of the traffic violations bureau shall be characterized and classified as a traffic violation and shall not be considered as a misdemeanor.” See Daniel v. State, 169 Ga. App. 722 (2) (314 SE2d 737) (1984). OCGA § 40-13-61 requires all records of such traffic violations to be maintained at the traffic violations bureau of the court, and prohibits the entering of an accusation on the misdemeanor docket maintained by the clerk of the court. OCGA § 40-13-62 establishes that the traffic violations bureau loses jurisdiction only in the event the defendant fails to appear to answer the charges against him, in which case “a bench warrant shall issue based on the accusation [and the] case shall be docketed by the clerk of the court and handled as all other misdemeanors.”

Decided July 7, 1987.

Michael Anderson, for appellant.

Patrick H. Head, Solicitor, Phillip M. Goldstein, Melodie H. Clayton, Assistant Solicitors, for appellee.

Clearly, then, such a traffic violation can be construed neither as a misdemeanor nor a felony, particularly where equating the filing of the citation in the traffic violations bureau with the filing of an accusation is concerned. See Duncan v. Ricketts, 232 Ga. 89 (205 SE2d 274) (1974). Thus, while under Majia, supra, the citation filed by the solicitor’s office in the state court constituted an accusation, in the instant case the accusation was not filed or “found” as contemplated by OCGA § 17-7-170 until the traffic violation was docketed as a misdemeanor criminal case in the state court on June 10, 1986. In State v. Spence, 179 Ga. App. 750, 752 (347 SE2d 612) (1986), this court noted that Majia and Collins v. State, 154 Ga. App. 651 (1) (269 SE2d 509) (1980), “appear to stand for the general proposition that an accusation embodied in an existing uniform traffic citation is ‘found’ within the meaning of OCGA § 17-7-170 (a) at the moment any court which is lawfully entitled to do so asserts its jurisdiction over the case.” (Emphasis supplied.) The court then held in Spence “that the issuance by the clerk of the state court of the notice directing him to appear in that court on a specified date for arraignment constituted a sufficient exercise of jurisdiction over the case by that court to support the filing of the demand.” Id.

Therefore, just as the protection conferred by OCGA § 17-7-170 does not attach until a formal indictment or accusation is filed (see State v. Hicks, 183 Ga. App. 715 (359 SE2d 712) (1987)), it is not until the traffic violations bureau loses jurisdiction to the state court under OCGA § 40-13-62 that a uniform traffic citation becomes an accusation and is “found” for purposes of OCGA § 17-7-170. It follows that the trial court correctly held that appellant’s jury trial demand was prematurely filed.

Judgment affirmed.

Birdsong, C. J., and Deen, P. J., concur in judgment only.

       OCGA § 17-7-170 has been amended effective July 1, 1987 to provide that a demand for trial shall be served on the prosecutor and shall be binding only in the court in which it is filed, except where the case is transferred from one court to another without a request from the defendant. Ga. L. 1987, p. 841, § 1.


author: Beasley, Judge.

text:
    74798.
    COOK v. THE STATE.
    (359 SE2d 716)
   Beasley, Judge.

When appellant filed his enumerations of error and brief in this case, he also moved for an expedited decision on the appeal, “so the State Court of Gwinnett County can continue to function in an orderly and timely fashion.” The state filed no response. We granted the motion.

Defendant was indicted (No. 622) September 7, 1986, on six counts for violation of the Georgia Securities Act of 1973 as amended (OCGA § 10-5-12 (a) (2)). After filing a motion to dismiss, a plea in abatement and an amendment, defendant filed a demand for speedy trial pursuant to OCGA § 17-7-170 on October 24. Subsequently a new indictment (No. 747) was returned alleging the same violations as the first but correcting certain defects of the former. Defendant withdrew his plea in abatement as amended to indictment 622 and requested that the state proceed on it, waiving “any defects.” The state chose to proceed on indictment 747 and defendant filed numerous motions attacking that indictment. Defendant also filed a motion to dismiss indictment 622 on the same grounds as the motion regarding indictment 747. The motion to dismiss indictment 747 was heard on December 12, and after deferring decision until the parties submitted briefs, the court entered an order dismissing indictment 747 on January 8, 1987.

Defendant then withdrew his motion to dismiss indictment 622, and filed a motion for discharge and acquittal based upon the failure to comply with his demand for trial under OCGA § 17-7-170. The court denied this motion. Defendant then filed a motion to dismiss indictment 622 because the code section upon which it had been based was repealed July 1, 1986, and replaced by a new provision under the same code section number, OCGA § 10-5-12. The motion was denied and defendant appealed, assigning error in the denial of his motion for discharge and acquittal and in the denial of his motion to dismiss.

1. Although not technically a final judgment, the denial of a motion to dismiss (more properly, a motion for acquittal) based upon OCGA § 17-7-170 is directly appealable under OCGA § 5-6-34 (a). Hubbard v. State, 254 Ga. 694, 695 (333 SE2d 827) (1985); Smith v. State, 169 Ga. App. 251 (1) (312 SE2d 375) (1983). That being true, in conjunction with appeal from that judgment defendant is entitled to raise the issue of the denial of his motion based upon the repeal of the statute describing his conduct as criminal. See Southeast Ceramics v. Klem, 246 Ga. 294, 295 (271 SE2d 199) (1980).

2. We first consider the issue of the repeal of OCGA § 10-5-12 because, if defendant’s conduct is not punishable, issues as to a speedy trial would be inoperative.

In 1973, a statute was passed which as amended in 1975 and 1979 provided: “It shall be unlawful for any person: ... To offer to sell or to sell a security by means of any oral or written untrue statement of a material fact or any omission to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they are made, not misleading (the buyer not knowing of the untruth or omission), if such person shall not sustain the burden of proof that he did not know, and in the exercise of reasonable care could not have known, of the untruth or omission.” This was incorporated into the Code of 1981 as OCGA § 10-5-12 (a) (2).

The pending indictment alleges that on April 7, 1984, “in connection with the offer and sale” to certain named individuals regarding specified units of partnership interests, which units are alleged to be securities, defendant “unlawfully and willfully . . . made untrue statements of material facts and omitted to state material facts necessary in order to make the statements made, not misleading” in various particulars and by various means. This was substantially reiterated as to statements made to different individuals throughout the six counts of the indictment.

In 1986 the legislature amended OCGA § 10-5-12 by striking it “in its entirety” and inserting in its place a new Code Section 10-5-12 which reads: “It shall be unlawful for any person: ... In connection with an offer to sell, sale, offer to purchase, or purchase of any security, directly or indirectly: ... To make an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they are made, not misleading. . . .” OCGA § 10-5-12 (a) (2) (B).

In our determination of what legal effect this had on the crime allegedly committed by defendant prior to the passage of the 1986 Act, we are immediately confronted with Robinson v. State, 256 Ga. 564 (350 SE2d 464) (1986), which reversed this Court’s decision, Robinson v. State, 180 Ga. App. 43 (348 SE2d 662) (1986).

In Robinson, the defendant was charged with violating OCGA § 16-13-31 (a), which was amended July 1, 1985, “by striking subsection (a) . . . in its entirety and substituting in lieu thereof, a new subsection (a).” Thus, exactly the same method of amendment was used by the legislature as was employed in revising the law applicable in this case. The only change in the substance of the drug statute language was the deletion of the words “or of a mixture containing cocaine,” which followed the requirement that one be in possession of 28 grams or more of cocaine.

The Supreme Court quoted from the United States Supreme Court decision of Bradley v. United States, 410 U. S. 605, 607 (93 SC 1151, 35 LE2d 528) (1973) which observed: “At common law, the repeal of a criminal statute abated all prosecutions which had not reached final disposition in the highest court authorized to review them. . . . Abatement by repeal included a statute’s repeal and reenactment with different penalties. . . . And the rule applied even when the penalty was reduced.”

Our Supreme Court noted that Gunn v. State, 227 Ga. 786 (183 SE2d 389) (1971) set out the common law doctrine which is “the law in Georgia.” The Court then held: “When a statute making described conduct a crime is repealed prior to final judgment on a conviction, the repeal ends the prosecution if the legislature has not provided otherwise in a saving clause.” Absent a saving clause in that case, the court found defendant’s conduct was no longer a crime and the prosecution was at an end.

The state has cited authority and legal precepts in support of its view that the statutory change did not vitiate the law effective on April 7, 1984, the date of the alleged crime. However, Robinson controls, and under the Ga. Constitution of 1983, Art. VI, Sec. VI, Par. VI, we must follow binding precedent.

One of the maxims stressed by the state is that even if the prior law were repealed, it would not be abolished where the legislature simultaneously reenacted a statute dealing with the same conduct. That was one of the grounds on which this Court bottomed its holding in Robinson, but the Supreme Court by its ruling impliedly found no merit in such theory.

The state also urges that the law did not change and thus there was no break in continuity. This too was not specifically addressed in Robinson. We consider such contention only insofar as the quotes from Bradley and the reference to the common law contained in Robinson might indicate the degree of similarity as a policy consideration in determining what transpired when the former law was repealed and then reenacted.

We note significant changes in the language of the statute. 1) Prior to 1986 the criminal act condemned was “to offer to sell or to sell by means of . . . [an] untrue statement,” etc. Under the 1986 enactment one is forbidden to make an untrue statement “in connection with an offer to sell, sale, offer to purchase, or purchase of any security, directly or indirectly.” Defendant has argued the difference in interpretation by the courts between “by means of” and “in connection with” under the federal securities’ laws of 1933 and the Federal Securities Exchange Act of 1934, particularly regarding the status of attorneys. While this argument is persuasive so that we might be in-dined to agree in principle, the most obvious reason for recognizing the change is simply that a plain examination of the language utilized evinces a broader scope of the 1986 Act irrespective of one’s status. “In connection with” a sale, etc., encompasses other conduct not necessarily forbidden under the code which formerly required a sale or offer by means of untrue statements or omissions of material fact.

Decided June 30, 1987

Rehearing denied July 15, 1987.

Charles A. Mullinax, for appellant.

Sam B. Sibley, Jr., District Attorney, George N. Guest, Assistant District Attorney, for appellee.

The 1986 Act omits the parenthetical language formerly contained in the code: “(the buyer not knowing of the untruth or omission).” So the element of whether the buyer is actually deceived has been deleted, resulting in one less factor the state must establish to show criminality.

Also omitted from the 1986 Act is the burden imposed on the accused to prove that he lacked knowledge of the untruth or omission.

Thus, the essential character of the criminal act has been modified by the 1986 statute. It is particularly significant here because the indictment tracks the code section as revised in 1986. It alleges untrue statements or omissions of material fact made “in connection with the offer and sale” of denominated units of a partnership interest. It is devoid of an allegation regarding whether the buyers knew of the untruth or omission. Therefore, the defendant is charged with acts which, while they may be a violation of the 1986 law, were not criminal in 1984, and the criminal provisions which then applied have been rendered non-existent by the statutory change.

In summary, there are no grounds to except this case from the general rule promulgated in Robinson. The judgment denying defendant’s motion must be reversed. This renders moot any need to determine whether defendant’s speedy trial rights were violated.

Judgment reversed.

McMurray, P. J., and Sognier, J., concur.

       If the Court’s language is literally interpreted, it would make no difference. See the concluding paragraph in Robinson, supra beginning at 565.


author: McMurray, Presiding Judge.

text:
    72758.
    McKINNEY & COMPANY, INC. v. LAWSON.
    (360 SE2d 289)
   McMurray, Presiding Judge.

Our judgment in McKinney & Co., Inc. v. Lawson, 180 Ga. App. 550 (349 SE2d 763), has been reversed by the Supreme Court of Georgia on certiorari. McKinney & Co., Inc. v. Lawson, 257 Ga. 222 (357 SE2d 786). In accordance with the opinion of the Supreme Court, our judgment is hereby vacated and the judgment of the Supreme Court is made our own. Accordingly, the judgment of the trial court is reversed.

Decided July 15, 1987.

David A. Handley, Hugh M. Worsham, Jr., for appellant.

James L. Ford, Charles H. Davis, Jr., for appellee.

Judgment reversed.

Carley and Pope, JJ., concur.


author: Benham, Judge. Beasley, Judge,

text:
    73913.
    ELLER v. THE STATE.
    (360 SE2d 53)
   Benham, Judge.

Appellant was convicted of voluntary manslaughter and appeals from the denial of his amended motion for new trial. Although appellant’s notice of appeal was filed one day before the judgment denying his motion was entered, we will review the case on its merits rather than dismiss it for lack of jurisdiction in accordance with Gillen v. Bostick, 234 Ga. 308 (1) (215 SE2d 676) (1975). See also Steele v. Cincinnati Ins. Co., 252 Ga. 58 (311 SE2d 470) (1984); LeGallienne v. State, 180 Ga. App. 108 (3) (348 SE2d 471) (1986). In doing so, we must overrule Boothe v. State, 178 Ga. App. 22 (342 SE2d 9) (1986), where this court dismissed a prematurely filed appeal based on the reasoning overruled in Gillen v. Bostick. The approach of reviewing criminal appeals on the merits whenever possible is also in keeping with the spirit of Evitts v. Lucey, 469 U. S. 387 (105 SC 830, 83 LE2d 821) (1985).

1. Upon returning home early on the morning of July 20, 1985, appellant found his wife in bed with the victim, John Hicks. Appellant shot Hicks in the head with a .44 magnum revolver, and the victim succumbed to his injuries several hours later in the hospital. Witnesses testified that appellant admitted shooting the victim and that he was seen holding the weapon and wearing blood-spattered shoes. The evidence was sufficient for a rational trier of fact to find appellant guilty of voluntary manslaughter beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); Swint v. State, 173 Ga. App. 762 (1) (328 SE2d 373) (1985).

2. Appellant contends that the trial court erred in refusing his request to charge both kinds of involuntary manslaughter, codified at OCGA § 16-5-3 (a) and (b). This issue was decided adversely to appellant in Ward v. State, 252 Ga. 85 (1) (311 SE2d 449) (1984). See also Smith v. State, 181 Ga. App. 136 (2) (351 SE2d 530) (1986).

3. The State was allowed to play for the jury a tape-recorded statement given by appellant’s wife to a Cobb County detective after the crime was committed. Appellant claims the playing of the tape was an improper method of impeachment. We disagree. Our review of the transcript shows that the proper foundation was laid before the tape was played, in accordance with OCGA § 24-9-83. The trial court committed no error in this regard. Carter v. State, 244 Ga. 803 (2) (262 SE2d 109) (1979). Nor was the tape inadmissible due to “the absence of testimony of the chain of evidence,” as appellant also claims. The testimony presented by the State at trial was that after the tape had been transcribed it was kept in the case file; that it had a safety device to prevent alterations; and that it had not been altered. That testimony was sufficient to carry the State’s burden of showing “with reasonable certainty that the evidence is the same as that as [taken] and that there has been no tampering or substitution. [Cit.]” White v. State, 163 Ga. App. 179 (2) (292 SE2d 875) (1982). The tape was properly admitted.

4. Appellant complains that the trial court erred in charging the jury that “to kill a spouse or spouse’s lover for past acts of adultery or to prevent the apparent commission of or the completion of an act of adultery in progress between them, with nothing else appearing, is murder. Any killing in a spirit of revenge for past completed wrong, however, heinous, cannot be justified.” He contends that the instruction was improper inasmuch as he was not charged with murder but the jury could infer that he had committed murder. Reading the jury instruction as a whole, we find that it was clear that appellant was not charged with murder, but with voluntary manslaughter. If the charge was given in error, it was harmless, since appellant was found guilty of voluntary manslaughter, not murder. Atkins v. State, 177 Ga. App. 527 (3) (339 SE2d 782) (1986); Gibbs v. State, 174 Ga. App. 19 (1) (329 SE2d 224) (1985).

5. Appellant’s final enumeration focuses on the trial court’s jury instruction on evidence of flight. He contends that the instruction was unwarranted since he was arrested at the scene of the crime, and there was no direct or circumstantial evidence of flight so as to warrant such an instruction. We disagree. Appellant’s neighbor testified that appellant left the scene of the crime, came to the neighbor’s home after the shooting, gave the neighbor the gun, and left shortly thereafter. Appellant was subsequently arrested at his home. The trial court did not err in giving the jury a charge on flight. Hood v. State, 179 Ga. App. 387 (5) (346 SE2d 867) (1986).

Judgment affirmed.

Birdsong, C. J., Deen, P. J., McMurray, P. J., Banke, P. J., Carley, Sognier, and Pope, JJ., concur. Beasley, J., concurs specially.

Decided July 15, 1987.

William P. Holley, Jr., for appellant.

Thomas J. Charron, District Attorney, Debra H. Bernes, Nancy I. Jordan, Thomas A. Cole, Assistant District Attorneys, for appellee.

Beasley, Judge,

concurring specially.

I concur in the judgment, being compelled to reach the merits despite the procedural problems which render the timing askew in this and other cases. See, e.g., Sharp v. State, 183 Ga. App. 641 (360 SE2d 50) (1987). The problems could all be avoided by the filing and dating of the trial court’s order with the clerk on the day it is signed by the court, if entry is what the court intends. Otherwise, it is not “entered” as of that day, and the court has not yet officially acted on the matter. It is still within the breast of the court and may be changed. Before then, the message which entry conveys is subject to revision, and the time period it ordinarily starts running is delayed.

I would not expressly overrule Boothe v. State, 178 Ga. App. 22 (342 SE2d 9) (1986).


text:
    74367.
    DUVAL v. DEPARTMENT OF HUMAN RESOURCES.
    (359 SE2d 756)
   Pope, Judge.

James L. Duval was demoted by his employer, Georgia Retardation Center, a division of the Department of Human Resources (DHR). Duval pursued his administrative remedies culminating in the denial of his appeal by the State Personnel Board. Duval then petitioned the Fulton County Superior Court for judicial review. On motion by DHR challenging its jurisdiction, the superior court dismissed the petition. We granted Duval’s application for discretionary review.

DHR is Duval’s employer and is governed by the Georgia Administrative Procedure Act (APA), OCGA § 50-13-1 et seq. Dept. of Human Resources v. Williams, 130 Ga. App. 149 (1) (202 SE2d 504) (1973). However, the decision of which Duval seeks review is one made not by DHR but by the State Personnel Board, which is not governed by the APA. OCGA § 50-13-2 (1); Dept. of Corrections v. Hemphill, 134 Ga. App. 65, 66 (213 SE2d 169) (1975). Accordingly, this matter is not governed by the APA but by the provisions of OCGA § 45-20-1 et seq. relating to the State Personnel Board.

Subject-matter jurisdiction for judicial review of State Personnel Board decisions lies in the superior courts of this state with venue in “the county of the place of employment of the employee.” OCGA § 45-20-9 (h); see Ga. Const. 1983, Art. VI, Sec. IV, Par. I. See generally Hill v. Kaminsky, 160 Ga. App. 630 (287 SE2d 639) (1981). Duval filed this action in Pulton County, but his place of employment is in DeKalb County. Notwithstanding Duval’s having filed his action in the wrong county for venue purposes, the Fulton County Superior Court erred in dismissing same. Rather, in light of DHR’s motion to dismiss, the court should have transferred the case to the appropriate forum (DeKalb County Superior Court) pursuant to the Uniform Transfer Rules, 251 Ga. 893 (1984). Therefore, we reverse the trial court’s grant of DHR’s motion to dismiss and remand this action to the lower court for transfer to the appropriate court where venue is proper. Routh v. St. Marys Airport Auth., 178 Ga. App. 191 (2) (342 SE2d 502) (1986); Long v. Bruner, 171 Ga. App. 124 (2) (318 SE2d 818) (1984).

Decided July 15, 1987.

Raiford Stanley, Jr., for appellant.

Michael J. Bowers, Attorney General, Patricia Downing, Assistant Attorney General, for appellee.

Judgment reversed with direction.

Birdsong, C. J., and Deen, P. J., concur.


author: Sognier, Judge.

text:
    73616.
    WOMBLE v. THE STATE.
    (360 SE2d 271)
   Sognier, Judge.

Appellant was convicted of incest and appeals.

1. Appellant contends the evidence is not sufficient to support the verdict. The victim, appellant’s fourteen-year-old daughter, testified that appellant had sexual intercourse with her, and appellant denied doing so. Thus, the only issue in this case was the credibility of witnesses, which was a question for the jury. Bryant v. State, 174 Ga. App. 468 (2) (330 SE2d 406) (1985). The testimony of the victim was corroborated by her brother and a medical doctor, and based on our examination of the entire transcript we find the evidence sufficient to meet the standard of proof required by Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. Appellant contends the trial court erred by overruling his challenge to the poll of the Walker County grand jury for the November 1985 term. The basis of appellant’s challenge was that three grand jurors who served during this term, when the indictment was returned against appellant, were law enforcement officers. This contention was decided adversely to appellant in Narramore v. State, 181 Ga. App. 254 (351 SE2d 643) (1986), which involved the same three grand jurors on the same grand jury of Walker County.

3. During the hearing on appellant’s challenge to the poll of the Walker County grand jury the State objected to questions to the challenged grand jurors as to certain matters which occurred while the grand jury was in session. The State’s objection was sustained and appellant asserts error in that ruling. This enumeration of error is without merit.

First, OCGA § 15-12-73 provides: “Admissions and communications among grand jurors are excluded as evidence on grounds of public policy.” Although OCGA § 15-12-72 apparently makes an exception to that provision by providing that grand jurors shall disclose everything which occurs in their service whenever it becomes necessary in any court of record in Georgia, the court here apparently did not find such disclosure was necessary to resolve the issue before it. Second, the only purpose of the proposed questions was an attempt to show bias and undue influence on other jurors by the challenged jurors, because they were law enforcement officers or associated with law enforcement, thereby impeaching the finding of the true bill. Our Supreme Court has held that grand jurors cannot be sworn and examined as witnesses to impeach their findings. Turner v. State, 57 Ga. 108 (1) (1876); Simms v. State, 60 Ga. 145, 146 (1, 2) (1878); Tanner v. State, 163 Ga. 121, 128 (8) (135 SE 917) (1926). Accordingly, the trial court did not err by sustaining the State’s objection to questions as to what transpired while the grand jury was in session.

4. Appellant contends the trial court erred by overruling his objection to testimony as to confidential communications with his attorney, and by forcing appellant to invoke his privilege in the presence of the jury. We do not agree.

This issue arose after a detective testified that in a statement made by appellant he said his daughter had accused him of the crime because appellant took out a warrant for his daughter’s boyfriend, James Lively, which made his daughter angry. On cross-examination appellant testified that he got a warrant for kidnapping against Lively, but dismissed the warrant after the judge told appellant the warrant was not legal because his daughter had gone off with Lively on her own free will. The prosecutor then asked: “It wasn’t because your attorney told you not to?” Appellant responded that his attorney might have made a suggestion of that, but the judge “had done told me.” Appellant’s attorney objected to any testimony as to advice he had given appellant, and the court informed both appellant and the jury that anything appellant discussed with his attorney was a confidential communication, and if appellant wanted to claim such confidentiality he could do so. Appellant claimed the privilege and the prosecutor asked no further questions on this subject.

Decided June 24, 1987

Rehearing denied July 16, 1987.

William D. Hentz, for appellant.

David L. Lomenick, Jr., District Attorney, David L. Whitman, Assistant District Attorney, for appellee.

We find no error in the procedure followed by the trial court. Appellant had already answered the prosecutor’s question before his counsel objected, and the court gave its instruction concerning confidential communications as a result of appellant’s objection. Appellant made no objection to the court’s instruction, so he cannot claim for the first time on appeal that the procedure followed by the court was error. Bryant, supra.

Judgment affirmed.

McMurray, P. J., and Beasley, J., concur.


author: Birdsong, Chief Judge.

text:
    74272.
    BARRETT v. THE STATE.
    (360 SE2d 400)
   Birdsong, Chief Judge.

Patrick Michael Barrett appeals his conviction for trafficking in cocaine. The offense involved 428 grams of a mixture containing cocaine, of which 80 percent, or 342.4 grams, was proved to be pure cocaine. Held:

1. The language of the indictment reads in pertinent part as follows: “Patrick Michael Barret[t] and Joseph Michael Bassett, Jr. . . . did knowingly bring into this state and were knowingly in actual possession of more than 400 grams of a mixture containing cocaine. ...” Appellant contends his prosecution is a nullity, according to Robinson v. State, 256 Ga. 564 (350 SE2d 464), which held that the repeal of OCGA § 16-13-31 without a “saving clause,” after an indictment but prior to trial and conviction rendered the subsequent conviction invalid. Appellant raises the point evidently for the first time on appeal, by an “amendment” to his enumerations of error, which amendment he filed after both he and the State had briefed the appeal issues. If he is correct in his attack on the conviction, then by virtue of de facto abatement during prosecution it is a nullity, and is void. “ ‘A “void” judgment is in reality no judgment at all. It is a mere nullity. It is attended by none of the consequences of a valid adjudication, nor is it entitled to the respect accorded to one. It can neither affect, impair, nor create rights. . . . But whenever it is brought up . . . [the party] may assail its pretentions and show its worthlessness. It is supported by no presumptions, and may be impeached in any action, direct or collateral.’ [Cit.]” Jowers & Son v. Kirkpatrick Hardware Co., 21 Ga. App. 751 (2) (94 SE 1044). By statute, in Georgia, “[t]he judgment of a court having no jurisdiction of the person or subject matter, or void for any . . . cause, is a mere nullity and may be so held in any court when it becomes material to the interest of the parties to consider it.” OCGA § 17-9-4. Mason v. Carter, 223 Ga. 2 (2) (153 SE2d 162). See Hagan v. Hagan, 209 Ga. 313 (2) (72 SE2d 295). If the judgment is a nullity and void, the right to attack it is not lost by laches (Mason, supra); nor is it waived by the failure to attack it before, since it is void, and not voidable, in that the abatement absolutely extinguishes the prosecution, and by definition amounts to the “entire overthrow or destruction of the action.” 1 AmJur2d, Abatement, Survival & Revival, § 1, p. 41 (2d ed.) Therefore, the appellant’s attack upon this conviction, based upon abatement, is properly before this court, and must be heard.

(a) In Robinson at p. 565, the Supreme Court stated the rule: “ ‘At common law, the repeal of a criminal statute abated all prosecutions which had not reached final disposition in the highest court authorized to review them. [Cits.] Abatement by repeal included a statute’s repeal and re-enactment with different penalties. [Cit.] And the rule applied even when the penalty was reduced. [Cit.] To avoid such results, legislatures frequently indicated an intention riot to abate pending prosecutions by including in the repealing statute a specific clause stating that prosecutions of offenses under the repealed statute were not to be abated. [Cit.]’ Bradley v. United States, 410 U. S. 605, 607-608 (93 SC 1151, 35 LE2d 528) (1973).”

What necessitated the ruling in Robinson, and distinguishes it from this case, is the fact that the conduct charged against that appellant — possession of “more than 28 grams of a mixture containing cocaine” — was no longer a crime after the repeal of the statute effective July 1, 1985, a date before the entry of final judgment in Robinson. See also Blount v. State, 181 Ga. App. 330 (352 SE2d 220).

In both State v. Fordham, 172 Ga. App. 853 (324 SE2d 796) and Davis v. State, 172 Ga. App. 893 (325 SE2d 926), cited by Robinson, the statute making the charged conduct a crime was not reenacted when it was repealed, but a period of time intervened between repeal and reenactment during which there was no such crime. Clearly in such a case, the repeal, i.e., the abolishment of the crime, terminates a prosecution as indicated in Robinson. To the same effect and similar circumstances, see Chastain v. State, 177 Ga. App. 236 (339 SE2d 298) also cited in Robinson.

Likewise, in Gunn v. State, 227 Ga. 786 (183 SE2d 389), cited by the court in Robinson, there was no valid law defining the crime at the time the appellant committed the acts. See Gunn v. Balkcom, 228 Ga. 802 (188 SE2d 500).

In Robinson, supra, and Blount, supra, the conduct could have involved an amount of cocaine, less than 28 grams under the 1985 law (Ga. L. 1985, p. 552) or less than 10 percent pure cocaine under the 1986 law (Ga. L. 1986, p. 397, § 1), which per se did not and does not constitute “trafficking” in this state since the 1985 repeal. The decisions and the rule stated in Robinson and Blount are absolutely correct, and were necessary to prevent conviction of the crime of trafficking for conduct that did not constitute the crime of trafficking in cocaine when those defendants were tried, but no such exigency prevails in this case, and we perceive the rule to be slightly different.

The conduct in this case — trafficking in 428 grams of a mixture containing cocaine, of which 80 percent, or 342.4 grams, was pure cocaine — has not ceased to be a crime in this state from the day it was committed up to the present date. It was an offense under the law as it stood at the time of the act (trafficking in 400 or more grams of a mixture containing cocaine or in 200 or more grams of cocaine; Ga. L. 1980, p. 432, effective July 1, 1980); the conduct was an offense at the time of trial and conviction (trafficking in 200 or more, i.e., 342.4, grams of cocaine; Ga. L. 1985, p. 552, effective July 1, 1985); and it is an offense as the law stands today (trafficking in 400 grams or more of a mixture with a purity of 10 percent or more cocaine; Ga. L. 1986, p. 397, § 1, effective July 1, 1986).

While it is true that, as said by the United States Supreme Court in Bradley, supra, and by our Supreme Court in Robinson, a saving clause will save a prosecution proceeding after repeal of a law which was in effect when the conduct was committed, a saving clause is not the only mechanism by which a prosecution might be validated in a particular case. In Bradley, what was sought was a lighter sentence than applied when the criminal conduct was committed; it was sufficient to that purpose, and did not pose any cost to public and legislative policy against crime, to merely invoke the general saving clause to punish the defendants under the previous law.

However, in the year before Bradley, the United States Supreme Court held: “The rule is well established that prosecutions under statutes impliedly or expressly repealed while the case is still pending on direct review must abate in the absence of a demonstration of contrary congressional intent or a general saving statute. For, ‘[p]rosecution for crimes is but an application or enforcement of the law, and if the prosecution continues the law must continue to vivify it.’ [Cit.]” (Emphasis supplied.) Pipefitters Local Union No. 562 v. United States, 407 U. S. 385, 432 (92 SC 2247, 33 LE2d 11). It is this “continued vivification” of the law or statute which is necessary to continue or validate the prosecution. In Pipefitters Local No. 562, the Supreme Court first looked for a “demonstration of . . . congressional intent” that would prevent abatement and, not finding any, relied upon the general federal saving clause.

In Sekt v. Justice’s Court of San Rafael, 159 P2d 17, 21, the California Supreme Court said the rule which abates prosecutions following a repeal without a saving clause “is based on presumed legislative intent, it being presumed that the repeal was intended as an implied legislative pardon for past acts . . . [and] it being assumed that the Legislature, by repealing the law making the act a crime, did not desire anyone in the future whose conviction had not been reduced to final judgment to be punished under it. But this rule only applies in its full force where there is an outright repeal, and where there is no other new or old law under which the offender may be punished . . i.e., where, as in Robinson, the offense is abolished and the conduct is no longer a crime.

In Sayer v. Brown, 119 Ga. 539, 546-547 (46 SE 649) and Webb v. Echols, 211 Ga. 724, 727 (88 SE2d 625), it was held that where a statute expressly declares that an existing statute is repealed, and simultaneously reenacts the same (Sayer, supra) or substantially the same (Webb, supra) provisions, the reenactment neutralizes the repeal and acts as a continuation of the old law. Granted the 1985 and 1986 incarnations of OCGA § 16-13-31 are not the same form as existed prior to the 1985 act and when this conduct was committed in June 1985; but in substantial material effect, they have continued to declare the conduct in this case to be a crime. To paraphrase Sayer, never for a single instant has the conduct in this case ceased to be a crime.

Although the offense has been redefined, this conduct has consistently been included in those definitions as constituting the crime of trafficking. The conclusion is inescapable that the public policy of this state which forbids the sale, manufacture, delivery, bringing into the state or actual possession of the amount of cocaine shown in this case, has never abated but has strengthened.

While clearly after July 1, 1985, the legislature no longer regarded as trafficking in cocaine the possession of an undetermined and perhaps infinitesimal amount of cocaine in a mixture (see Robinson, supra), it is equally clear the legislature continued to regard, as trafficking in cocaine, the selling, manufacturing, delivering or bringing into this state and possession of 342.4 grams of pure cocaine, as happened in this case, and moreover increased the penalty. It cannot reasonably be supposed that with this object in view and with the strengthening censure of the legislative frame of mind, the legislature designed to extend pardon and forgiveness to those who violated the provision of the former act, and whose same conduct violated the act as it was reenacted in 1985 and as it stands today.

To keep the horse before the cart, there is nothing evil or offensive, constitutionally or otherwise, about prosecuting as a crime that conduct which was a crime when committed, so long as it has not since become lawful as was the case in Robinson, Blount, Gunn, State v. Fordham and Davis. The legislature can specifically provide that such prosecution will not abate, as held in Robinson and Bradley v. United States; or the legislature can “revivify” the law by simultaneously with the repeal of the former law, reenacting law criminalizing the same behavior.

With the redefining of the crime and the reenactment of harsher penalties for the same conduct as was an offense under the law when the conduct was committed, we do not surmise any remotely conceivable legislative intent to pardon and forgive those who committed the offense before the new law came into effect, except, as in Robinson, where the conduct ceased in fact to be the crime of trafficking.

We therefore conclude there is a clear “demonstration of [legislative] intent,” (Pipefitters Local Union No. 562) that prosecution of the conduct in this case under the former law should not abate with the re-defining of the crime and the reenactment of harsher criminal sanctions, inasmuch as it has not ceased to be a crime in this state and the penalty has increased. The appellant was found guilty of trafficking in an amount proven to be 428 grams of a mixture containing 80 percent purity of cocaine, or 342.4 grams pure cocaine. This is eight times the amount of pure cocaine that would qualify the appellant for prosecution under today’s law. This conduct has not been decriminalized in this state at any time. The prosecution was not abated.

(b) The trial court did not err in sentencing the appellant Barrett to 25 years, 15 years in confinement and 10 years on probation, with a $250,000 fine. This is the penalty that attached to his conduct under the law by which he was prosecuted. “ ‘It is the settled law of this State that where a crime is committed on a certain date, the penalty which attached to the crime on that date is the penalty exacted by our law. . . . [T]he penalty for a criminal offense relates only to those offenses committed when and after such legislation becomes effective.’ ” State v. Williams, 172 Ga. App. 708, 709 (2) (324 SE2d 557); Barton v. State, 81 Ga. App. 810, 814 (60 SE2d 173).

2. Appellant appeals on the general grounds, i.e., contends the verdict is contrary to the evidence, without supporting evidence, and contrary to law; and that the admission of the cocaine into evidence was prejudicial error and irrelevant as to himself because the evidence is undisputed that he was not in “actual possession” of it as required by § 16-13-31.

The evidence showed that airplane tickets for appellant Patrick Michael Barrett and Joseph Bassett were both purchased with cash, twelve minutes apart from the same travel agency in Toledo, Ohio, on June 4, 1985. The tickets were for June 5 flights on the same plane from Toledo to a connecting flight in Atlanta, then to Miami. The return flights were for June 6, same plane, from Miami to Atlanta, then to Toledo. The tickets were purchased in the names Patrick Brown and Joe Schmidt. On these planes, appellant (as Patrick Brown) and Bassett (as Joe Schmidt) sat in different rows. At trial, Bassett testified that appellant bought these tickets. According to Bassett, a friend had introduced him and appellant a few days earlier because appellant wanted to purchase some cocaine and Bassett knew how to set up a deal. It was arranged the two would fly to Miami where Bassett’s sister lived; her boyfriend would obtain and sell the cocaine. Bassett was disturbed that appellant had bought the tickets in false names, but it was done before Bassett knew of it. On June 5, they flew to Atlanta, then to Miami; appellant took only a brown tote bag and Bassett took a red tote bag with a few clothes. Appellant had the cash for the cocaine purchase. On the night they arrived in Miami, Bassett made the initial negotiations with the seller at $18,000 for about a pound of cocaine; then Bassett left to get something to eat and never knew what the final price had been for the cocaine. The next day, appellant and Bassett returned to Atlanta. Bassett agreed to carry the cocaine in his red tote bag so he could take the risk; in return, he would receive some of the cocaine.

The pair came under suspicion in Atlanta and the arrests were made as follows: Clayton County investigator Simon, agent Richardson, and DEA agent Markonni were in the airport observing passengers arrive on flights from certain Florida cities known for drug distribution and importation. Their attention was drawn to Bassett because he had only a carry-on tote bag and after leaving the plane appeared to be waiting for someone, at times walking backwards and. nearly colliding with other persons as he looked back. He appeared to be nervous. Because of his suspicious behavior; Simon and Richardson followed Bassett up the concourse and maintained surveillance. Finally, Bassett met another person (appellant) 16 gates beyond the arriving gate area; they had a brief conversation and then parted. Bassett then checked into the departing gate for the Toledo flight, giving the name Joe Schmidt. At this point the agents were able to obtain a reservation report on this named passenger and learned he had made a quick turn-around trip to Miami, which fact was another indicator of drug trafficking. Simon decided to interview him. Bassett had seated himself in the departing gate area and placed his red tote bag on the table beside his chair. Simon saw appellant (the person previously seen talking to Bassett on the concourse) walk up and place his brown tote bag on the table next to the red tote bag and then leave. When Simon interviewed Bassett, Bassett disavowed any ownership of the red tote bag; therefore, the bag was searched and Bassett’s driver’s license was discovered, and the cocaine. On his person, Bassett carried a copy of a flight itinerary for Pat Brown on the same plane. During all this time at the airport, when Simon and Richardson followed Bassett, agent Markonni had stayed behind to watch whatever person Bassett was waiting for. Markonni did not see that person, but caught up with Simon and Richardson and watched the brown tote bag on the table after Simon, Richardson and Bassett had left to conduct the interview of Bassett and search the red bag. A few minutes later Markonni learned cocaine had been found in Bassett’s red bag and also a flight invoice for Pat Brown. Markonni went back to watch the brown bag and found the name Patrick Barrett on it; he saw a person matching the description given him of the man Simon and Richardson had seen speaking to Bassett on the concourse. This person walked past the gate, evidently saw Markonni sitting in the gate area and went to the next gate, looking back at the bag. At this point Markonni decided to interview this person. Markonni asked to see the man’s airplane ticket. The man said it was in his bag, walked over and retrieved the bag, and extracted his plane ticket. He said his name was Patrick Brown, but he said he had no identification, not a driver’s license, credit card, nor even a receipt. Appellant agreed to a search of the brown tote bag because, he said, “I don’t have any drugs.” Markonni found in the bag a checkbook with the name Patrick Bassett. At this point, owing to the totality of all the circumstances — the false name; the reservation history; the quick-trip; the lack of luggage; appellant’s suspicious behavior; his lack of identification; his having left his bag with Bassett; and the fact that Bassett, who was carrying cocaine, had also carried appellant’s travel itinerary — Markonni arrested appellant with probable cause to believe he was involved with Bassett and the cocaine.

The state forensic chemist testified the cocaine amounted to 428 grams or slightly less than a pound, and tested 80 percent pure cocaine.

The evidence in this case is such that a reasonable trier of fact could rationally have found proof of guilt of the offense charged beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560); Boyd v. State, 244 Ga. 130, 132 (259 SE2d 71); Turner v. State, 151 Ga. App. 169, 170 (259 SE2d 171). The testimony of the accomplice Bassett is well corroborated by the evidence. OCGA § 24-4-8; see Birt v. State, 236 Ga. 815, 826 (225 SE2d 248). The cocaine itself was not inadmissible as irrelevant and prejudicial; nor was it made so because appellant did not carry it in his own bag. The difference between actual possession and constructive possession is one of degree, the two often shading into one another so that it is difficult to say where one begins and the other begins. Dalton v. State, 249 Ga. 720 (292 SE2d 834). See Lang v. State, 171 Ga. App. 368 (320 SE2d 185). Whether he had physical possession of the cocaine, appellant aided and abetted its actual physical possession and is guilty of the offense of trafficking under OCGA § 16-13-31 and under § 16-2-20, as a party to the crime. Moreover, the evidence in this case shows appellant had the power and intention to control, and in fact did control, Bassett’s physical possession of the cocaine which appellant had purchased and then owned. Bassett physically carried the bag containing appellant’s cocaine so as to “take the risk” and was being paid with part of the cocaine to do so, but appellant’s control of it was actual. We decline to hold the legislature meant to exclude from the purview of § 16-13-31 a person in active participation in trafficking in cocaine merely because two people do not usually carry at one time the same small bag containing contraband drugs, nor would one person usually physically carry large amounts of contraband drugs. See Evans v. State, 167 Ga. App. 396 (306 SE2d 691). The “actual possession” required by OCGA § 16-13-31 to authorize a conviction for trafficking refers not merely to physical custody but refers to actual active participation in the possession of such substances so as to be a party to the crime of trafficking.

Judgment affirmed.

Deen, P. J., and Pope, J., concur.

On Motion for Rehearing.

The appellant contends this case cannot be distinguished from Robinson because the indictment accused Barrett of bringing into this State and being in actual possession of more than 400 grams of “a mixture containing cocaine.” However, this argument misses the whole point that while the prosecution in Robinson was abated, the one in this case was not. Therefore prosecution of this appellant, who was indicted under the law in effect at the time of the act, was proper. The appellant has got the cart before the horse. Prosecution of an offense under the law in effect at the time of the act is not, as a principle, unjust or offensive by itself. A repeal abates such a prosecution only because it is presumed the legislature “by repealing the law making the act a crime, did not desire anyone in the future whose conviction had not been reduced to final judgment to be punished under it,” but intended to pardon and forgive them. Sekt, supra. This presumption assumes that the conduct is no longer a crime. Robinson clearly fell within the ambit of that assumption; this case does not. As we said, the conduct in this case has never been decriminalized. The simultaneous repeal and reenactment of laws making this conduct a crime, and increasing of penalty, forbid us to conclude, much less to presume, that the legislature meant by the repeal and reenactment to pardon and forgive the conduct as proven in this case. With the clear demonstration of legislative intent (Pipefitters Local Union No. 562) that this prosecution not abate, the prosecution was properly pursued under the law then existing and under the indictment tracking the language of that law. See generally Moran v. State, 170 Ga. App. 837, 841-842 (318 SE2d 716).

Decided June 25, 1987

Rehearing denied July 16, 1987

Lillian L. Neal, for appellant.

Robert E. Keller, District Attorney, Clifford A. Sticker, Assistant District Attorney, for appellee.

If the State had not proved the amount of pure cocaine in the mixture, or if there had been a material dispute in the evidence as to how much cocaine was in this 428-gram mixture, so that it could not be determined whether the jury, in finding appellant guilty, found he possessed such quantity of cocaine as has continued to be trafficking in this State, then undoubtedly we might conclude this case falls within the ambit of conduct involving an undetermined and perhaps infinitesimal amount of cocaine, which the 1985 repeal abolished as “trafficking” in this State.


text:
    74506.
    THE STATE v. TART.
    (359 SE2d 722)
   Birdsong, Chief Judge.

The State of Georgia appeals from the judgment of the Rockdale Superior Court, which quashed an indictment alleging Glenn B. Tart operated his motor vehicle on May 10 and August 22, 1986, after having received notice of the revocation of his driver’s license because of being declared a habitual violator by the Department of Public Safety.

The record does not contain the habitual violator notice to Tart and thus it cannot be determined on appeal the exact number and specific offenses relied upon by the State in its classification of Tart as a habitual violator. However, the sufficiency of the evidence to prove the offense charged is not in issue on a motion to quash. See Lastinger v. State, 84 Ga. App. 760 (1) (67 SE2d 411). The facts set forth in Tart’s motion to quash are not contested, and they show Tart was classified a habitual violator on convictions in (a) Newton County Probate Court on July 10, 1985, for the offense of driving while his driver’s license had been “suspended/revoked,” (b) Newton County Probate Court on July 10, 1985, for driving under the influence, and (c) Rockdale County Probate Court on December 12, 1985, on a charge of driving while his license was “suspended/revoked.”

Following his arrest on May 10, Tart filed a petition on July 22, 1986, for a writ of habeas corpus in the Fulton County Superior Court to set aside his convictions in the Newton and Rockdale Probate Courts. That petition was granted on September 18, 1986. The court held those convictions were “null and void” and directed the Commissioner of Public Safety to rescind Tart’s habitual violator status and to reinstate his driver’s license.

On November 18, 1986, Tart was indicted for his traffic offenses of May 10 and August 22. He was brought to trial on January 13, 1987, and his motion to quash was granted and filed on January 14, 1987. The State has filed this appeal. Held:

At issue in this appeal is the legal sufficiency of an indictment on November 18, 1986, for alleged offenses occurring on May 10 and August 22, 1986, based on the operation of a motor vehicle on those dates after being declared a habitual violator on February 7, 1986, when the offenses upon which the habitual violator status was based, were set aside as “null and void” on September 18, 1986.

“[I]t is not necessary to prove the defendant’s prior convictions on a prosecution under the habitual violator statute. [Cit.] The state is required to prove ‘that the defendant was declared an habitual violator; . . . and, that he operated a motor vehicle in this state without having obtained a valid driver’s license.’ [Cit.] [It is the contemptuous disregard for the law that forms] [t]he very essence of the crime [of] driving after being declared to be a habitual violator. Kimbrell v. State, 164 Ga. App. 344, 346 (296 SE2d 206) (1982).” Webster v. State, 170 Ga. App. 102, 103 (316 SE2d 503). “[D]riving a motor vehicle after revocation of a license upon being declared a habitual violator is an offense separate and distinct from the offenses which led to the driver’s being declared a habitual violator. Flakes v. State, 243 Ga. 699 (3) (256 SE2d 379) (1979); Bollen v. State, 155 Ga. App. 181 (270 SE2d 227) (1980). Accordingly [these cases] hold that Code Ann. § 68B-308 (c) [now OCGA § 40-5-58 (c)] is not a recidivist statute and that in a prosecution under this statute it is not necessary to prove the defendant’s prior convictions.” Smith v. State, 248 Ga. 828, 830 (286 SE2d 709). Hence, “insofar as habitual violator status is concerned, [the crucial date] is the date of driving, not the date on which the status is challenged or [the prior convictions] set aside. If the person is driving despite notification that he may not do so because he has been declared an habitual violator, he is flaunting the law even if one or more of the underlying convictions is voidable.” State v. Bell, 182 Ga. App. 860 (357 SE2d 596). It follows that the indictment is not defective and was not subject to the motion to quash.

Judgment reversed.

Deen, P. J., and Pope, J., concur.

Decided July 1, 1987

Rehearing denied July 16, 1987.

Robert F. Mumford, District Attorney, for appellant.

I. B. Brownlow, Jr., for appellee.


author: Sognier, Judge. Beasley, Judge,

text:
    73746.
    ATKINSON v. LEDBETTER.
    (360 SE2d 66)
   Sognier, Judge.

The Georgia Department of Human Resources (DHR) found that Martha J. Atkinson had failed to cooperate in establishing paternity for her daughter, Amy, and consequently removed her from the Aid to Families with Dependent Children grant she and her family had been receiving. Atkinson appealed DHR’s final decision to the Superior Court of Fulton County, which affirmed the administrative decision, and we granted Atkinson’s application for discretionary review.

The record reveals that appellant named Robert Meriwether as the father of her daughter, thus allowing DHR to bring a civil paternity suit against him. In the course of the paternity proceeding, HLA blood tests were performed with the consent of all the parties, who stipulated that if the results of that testing excluded the possibility of Meriwether being Amy’s father, the paternity action would be dismissed. The parties also stipulated that if the test results were disputed, the disputing party could within 15 days request an order for additional testing at the expense of the requesting party.

When the HLA test results excluded Meriwether as the father of Amy, the paternity action against him was dismissed with prejudice, and DHR sought additional information from appellant regarding Amy’s paternity. Appellant insisted she had no further information to give, and thus could not name any other person as Amy’s father. Appellant was thereupon sanctioned by DHR pursuant to 45 CFR § 232.12 (d) for her failure to cooperate, and appellant appealed this decision. After an evidentiary hearing during which witnesses appeared and testimony was taken, Administrative Hearing Officer J. C. Harrison found that because the HLA test results had excluded Mer-iwether, “as long as appellant alleges that Robert Meriwether is the father of Amy Atkinson, she is failing to cooperate with the County Department without good cause for AFDC eligibility purposes.”

The record further shows that when appellant sought review of Harrison’s decision, DHR’s Hearing Officer for Final Appeals, William J. Stanley, affirmed Harrison’s decision, adding four “factors” he believed supported this decision. Stanley’s decision thus became the final decision of DHR, and the Superior Court affirmed that determination. We now reverse.

1. Harrison’s decision was based on only two findings of fact: that appellant named Meriwether as Amy’s father, and that the Superior Court had “held” that he was not the father in the paternity action. Pretermitting the question of whether the Superior Court actually so held in the paternity action, those findings alone do not support Harrison’s conclusion that appellant failed to cooperate. “Cooperation,” in this regard, is defined at 45 CFR § 232.12 (b), and that definition does not require an applicant for AFDC to establish paternity conclusively, but to assist the agency with whatever information the applicant has or can reasonably obtain, and to provide information (or attest to the lack of it) under penalty of perjury. Harrison, in his decision, applied a far more stringent standard, which would provide, in effect, that if the blood test results exclude a named father, the applicant’s refusal or inability to keep naming possible fathers until paternity is established is, per se, a failure to cooperate. In light of the Supreme Court’s recognition that HLA tests are not infallible and are not, by themselves, conclusive on the issue of paternity, Jackson v. Jackson, 253 Ga. 576 (322 SE2d 725) (1984), Harrison’s use of that standard was clearly erroneous. See Amos v. Dept. of Health &c. Svcs., 444 S2d 43 (Fla. 1983).

2. DHR’s final decision is equally flawed. In his decision, Stanley listed four factors in addition to the “facts” relied on by Harrison, which support the determination of failure to cooperate. Close examination of these four factors, however, discloses that they are not evidence but the sheerest speculation of Stanley as to the motives of both appellant and Meriwether which he then labeled evidence.

(a) Although Stanley stated he recognized appellant’s poverty as a reason for her failure to dispute the HLA test results and pay for a second test, he nevertheless believed she should have done so. The record shows that in order to protest the results of the blood test, appellant would have been required to pay $272 for a second test. The uncontroverted and eminently believable evidence is that her poverty was the only reason appellant did not protest. Ignoring that harsh economic reality while “recognizing” it is pure sophistry.

(b) Stanley portrayed Meriwether’s “honesty” in admitting paternity as to another of appellant’s children as strengthening his denial of paternity as to Amy, because his admission “indicates that Meriwether is not reluctant to own up to his responsibilities when they are indeed his and not someone else’s.” If mind-reading were possible and the results of such activity admissible as evidence, we might just as likely find that Meriwether, having been taught the consequences of an admission of paternity by having been ordered to pay support for the first child, now seeks to avoid a repetition of those consequences as to Amy.

(c) We find absolutely no support in the record for the “possibility of Amy being the result of a ‘casual relationship with yet another man.’ ” The record is remarkably clear in this regard, and shows only appellant’s steadfast and uncontroverted insistence that she did not sleep with any other man during the applicable time period.

(d) Similarly, the speculation that jealousy and anger over Mer-iwether’s abrupt departure may have motivated appellant to name him as Amy’s father is totally devoid of support in the record. No evidence of jealousy or anger was introduced. In fact, it appears from the record that appellant refused Meriwether’s offer of marriage because he beat her.

Thus, the findings used by Stanley to bolster support for the original decision consist of conjecture, speculation, and impermissible inferences. These cannot be relied on in determining whether appellant failed to cooperate. Moreover, Stanley’s decision was reached after review of the “cold” record; Harrison, in his decision arrived at after hearing and seeing the witnesses “live,” did not make the findings later inserted by Stanley. While OCGA § 50-13-17 (a) permits the administrative appeal officer to take evidence, since that is a power the agency had in making the initial decision, the record here shows that he did not do so. Since credibility of witnesses is a question that must be decided by the factfinder who sees and hears the witnesses and is in a position to evaluate their demeanor, Stanley’s substitution of his judgment for that of Harrison is impermissible. See generally Crawley v. MARTA, 147 Ga. App. 293-294 (1) (248 SE2d 555) (1978).

We recognize that we are bound to affirm the decision of the trier of fact if there is any evidence to sustain it. See City of Atlanta v. Shaw, 179 Ga. App. 148, 149 (345 SE2d 642) (1986). However, when there is no evidence to support that decision, our duty is to reverse. Id. Here, since neither the blood test results nor their conflict with appellant’s testimony are themselves conclusive, see Jackson, supra, they cannot alone support a finding of failure to cooperate, and there is no evidence in the record to support DHR’s final decision. Amos, supra.

3. In view of our decision in Divisions 1 and 2, we need not address appellant’s other enumerations of error.

Judgment reversed.

Birdsong, C. J., McMurray, P. J., Banke, P. J., Pope and Benham, JJ., concur. Deen, P. J., Carley and Beasley, JJ., dissent.

Beasley, Judge,

dissenting.

Based on the any evidence rule, the superior court affirmed the Department of Human Resources’ decision to suspend Atkinson’s individual portion of the Aid to Families of Dependent Children payments which she and her children were receiving. The DHR found that claimant failed to cooperate in establishing paternity for her out-of-wedlock child, Amy, frustrating its efforts to obtain financial aid for that child from the child’s father. See 42 USCA § 602 (a) (26) (B); 45 CFR § 232.12 (a) & (b).

Cooperate, as mandated by 45 CFR 232.12 and defined by this regulation, embraces the obligation of affirmative participation by the claimant in the fact-finding process and the giving of honest answers to relevant questions. Refusing to answer, or giving information which may reasonably be found not credible, are among the responses of the claimant which would constitute refusal to cooperate.

While the initial hearing officer’s two expressly stated findings of fact were deficient as such, he specifically stated that he “carefully considered the entire available evidence” and reached his decision “based on the preponderance of the credible evidence.” He had observed and listened to Atkinson as a witness.

In the final administrative hearing, upon appeal from the live hearing, the officer considered and gave “a careful review” to the entire record; this included “the recorded testimony” and the fact that it was presented live before the initial hearing officer. It is that final agency decision which the superior court affirmed and we review. The administrative appeal officer had “all the powers it would have in making the initial decision,” OCGA § 50-13-17 (a), and thus was authorized to finally determine credibility of the witnesses and weight of the evidence.

The officer found that the negative report on the HLA test was admissible under OCGA § 50-13-15 (1). Besides the test results and the dismissal, the hearing officer expressly listed four other factors contributing to the finding that claimant failed to cooperate.

1) The stipulation of claimant for the HLA test was that it would be taken and govern. The parties to the paternity proceeding had agreed to be bound by the result of the HLA blood test unless the result was challenged within fifteen days and another test was accomplished at the requesting party’s expense. Claimant did not invoke the opportunity to protest. The hearing officer took into account that claimant cited poverty as an excuse for failing to protest (since an additional test would cost $275) but was of the opinion she at least could have protested and requested additional time for financial help.

2) Robert denied paternity of Amy. Yet he admitted paternity as to another child of claimant. The admission gave strength to his denial, in the hearing officer’s judgment. Moreover, shortly after Amy’s birth, claimant initiated action against Robert but dismissed it. Although claimant asserted she wished to avoid the humiliation and harassment of court proceedings, the hearing officer found her other actions did not indicate a reluctance to invoke the aid of courts or other tribunals.

3) Claimant had a third illegitimate child by another person and admitted a number of close male friends. This would not rule out the possibility of Amy being the result of a “casual relationship with yet another man.”

4) Claimant testified that she and Robert lived together for several years and that their relationship terminated abruptly when he moved in with a neighbor. The hearing officer reasoned that jealousy and anger could be the cause of her accusing Robert.

Based upon all the circumstances, and giving great weight to the blood test results, the administrative officer found claimant “refused to name the correct father of her child Amy, whose identity she must certainly know.” Thus, the officer, like the initial hearing officer who saw and listened to Atkinson, did not believe the claimant and found that the lack of credibility constituted failure to cooperate.

OCGA § 50-13-19 sets the bounds for court review of administrative determinations. The prime caveat regarding review of a final administrative decision is in subsection (h): “The court shall not substitute its judgment for that of the agency as to the weight of the evidence on questions of fact.” Somewhat analogous are the findings of the full board, which supersede those of the ALJ in workers’ compensation cases and must be upheld if there is “any evidence” to support them. Royal Globe Ins. Co. v. Hartford Ins. Co., 175 Ga. App. 95, 96 (1) (332 SE2d 387) (1985).

1. It was not error to admit the HLA test result. Such eviden-tiary matter falls squarely within the language of OCGA § 50-13-15 (1) permitting the reception of a “medical . . . evaluation of a type routinely submitted to and relied upon by the agency in the normal course of its business.”

This proof was not submitted to conclusively establish that claimant had failed to cooperate, which it did not, but was properly considered as evidence that claimant was not naming the correct father.

2. Beside the result reached by the factfinder that claimant had failed to name the father, there were additional factors which led to the conclusion that claimant’s answers in this crucial area were not credible, and that in this regard she did not cooperate. Considering the record in its entirety, I cannot conclude that the findings of the agency were clearly erroneous. OCGA § 50-13-19 (h) (5). This removes the basis for reversal.

Decided July 16, 1987.

Patricia D. Barron, for appellant.

Michael J. Bowers, Attorney General, Mary Foil Russell, Assistant Attorney General, for appellee.

I am authorized to state that Presiding Judge Deen joins in this dissent.

       The case cited by the majority, Crawley v. MARTA, 147 Ga. App. 293 (1) (248 SE2d 555) (1978), does not involve administrative proceedings but rather a jury trial. The administrative appeal officer’s role differs significantly from that of a receiving judge.