Burns v. State , 127 Ga. App. 828 ( 1973 )

Evans, Judge.

The defendant was indicted, tried and convicted in five counts for the possession and sale of marijuana and heroin as follows: (1) for possession of marijuana on the 20th day of January, 1972 (convicted and sentenced to serve 12 months); (2) possession of marijuana on the 2nd day of February, 1972 (convicted and sentenced to serve 12 months); (3) sale of marijuana on the 2nd day of February, 1972 (convicted and sentenced to serve two years); (4) possession of heroin on the 5th day of February, 1972 (convicted and sentenced to serve five years); and (5) sale of heroin on the 5th day of February, 1972 (convicted and sentenced to serve eight years). The order of the court required that the sentences run consecutively, and amounted to a total of 17 years. The appeal is from the judgment and sentence. Held:

The contention of the defendant is that the possession and sale of marijuana on the same day and the possession and sale of heroin on the same day merged, and that the court thus erred in charging the jury that it might convict the defendant of separate counts and in thereafter entering judgment against the defendant on the separate counts and sentencing him on the separate counts. Defendant contended there was a merger of several of the crimes charged.

"When the same conduct of an accused may establish the commission of more than one crime, the accused may be prosecuted for each crime. He may not, however, be convicted of more than one crime if (1) one crime is included in the other, or (2) the crimes differ only in that one is defined to prohibit a designated kind of conduct generally and the other to prohibit a specific instance of such conduct.” §26-506, Criminal Code of Georgia (Ga. L. 1968, pp. 1249, 1267).

The offense of sale of marijuana and heroin necessarily included the offense of possession of marijuana and heroin, that is, unless the evidence showed they were on different occasions on the same date. But in this instance the evidence showed that there was a merger of certain of the counts of possession and sale; thus, under the Criminal Code the doctrine of merger is still the law in this State. See Walden v. State, 121 Ga. App. 142 (4), 146 (173 SE2d 110); Gary v. State, 122 Ga. App. 151 (2) (176 SE2d 478); Wells v. State, 126 Ga. App. 130 (2) (190 SE2d 106).

This decision is not in conflict with the decision of the Supreme Court in Gee v. State, 225 Ga. 669 (171 SE2d 291), in which both the date of the offense (November 21, 1968) and the trial of the case (March 19, 1969) occurred prior to the effective date of the Criminal Code of Georgia (Ga. L. 1968, pp. 1249, 1267). Consequently, the decision rendered in Thompkins v. State, 126 Ga. App. 683 (191 SE2d 555), which relies on Gee v. State, supra, is erroneous and is specifically overruled.

Accordingly, the court erred in charging the jury that a verdict of guilty could be returned as to each count of the indictment, including those counts where there was a merger as heretofore set forth; and erred in sentencing the defendant on those counts which were merged with other counts, which amounted to double jeopardy.

Submitted September 6, 1972 Decided January 11, 1973. Burt, Burt & Rentz, Van Cheney, for appellant. Robert W. Reynolds, District Attorney, for appellee.

Judgment reversed.

Bell, C. J., Quillian, Clark and Stolz, JJ., concur. Hall P. J., Eberhardt, P. J., Pannell, and Deen, JJ., dissent.