Pippin v. State , 205 Ga. 316 ( 1949 )

1. While the Supreme Court has jurisdiction of a writ of error where the constitutionality of a statute of this State is drawn in question, no such question will be determined if there is any other ground in the case upon which the court can possibly rest a decision.

2. Separate and distinct offenses of a similar nature, and of the same class or species, may properly be joined in different counts in the same indictment.

3. The fact of a former conviction and sentence must be charged in the indictment where a second or subsequent conviction would affect the grade of the offense or require the imposition of a different punishment.

4. "Every indictment or accusation of the grand jury shall be deemed sufficiently technical and correct, which states the offense in the terms and language of this Code, or so plainly that the nature of the offense charged may easily be understood by the jury." Code, § 27-701.

5. In a case where there are several counts in an indictment charging similar offense, the question of whether the court will or will not, on motion, require the solicitor-general to elect upon which count he will proceed to try the defendant, is a matter within the sound discretion of the court.

6. An objection to the admission of evidence on the ground that it is "immaterial and irrelevant" is not such an objection as it would be reversible error to overrule.

7. Every ground of an amended motion for a new trial must be complete within itself, and one which complains of a ruling on an objection to the admission of evidence but which is so incomplete that it requires reference to the brief of evidence, or other parts of the record, in order to ascertain what the evidence was to which the objection is urged, presents no question for determination by this court.

8. "Overruling an objection made generally to specified evidence is in no event cause for reversing a judgment, unless it appears that the objection was good as to all of such evidence." Collins Park Belt R. Co. v. Ware, 112 Ga. 663 (37 S.E. 975).

9. "Though it is better for him not to do so, it is not usually cause for a new trial that the judge gives in charge to the jury an entire statutory or Code provision, a part of which is applicable and a part inapplicable to the case under consideration." Thompson v. Mitchell, 192 Ga. 750 (2) (16 S.E.2d 540).

10. The court did not err in charging the jury as complained of in the sixth and tenth grounds of the amended motion for a new trial.

11. Where a case is not wholly dependent upon circumstantial evidence, the failure of the trial judge to charge the law touching such evidence, in the absence of an appropriate request for such charge, furnishes no ground for a new trial.

12. The provision of Code § 38-414, that "The confession of one joint offender or conspirator, made after the enterprise is ended, shall be admissible only against himself," has no application in a case in which no confession of a joint offender or conspirator is offered, but where such joint offender or conspirator is sworn and testifies as a witness.

13. The evidence amply authorized the verdict, and the trial court did not err in overruling the motion for a new trial.

No. 16624. MAY 12, 1949. An indictment was returned against L. G. Pippin, in Upson Superior Court, charging him in three separate counts with misdemeanors, the material allegations of the first count being that the said accused did then and there unlawfully and with force and arms maintain and keep a lewd house and place for the purpose of fornication and adultery contrary to the laws of the State of Georgia, good order, peace and dignity thereof.

The second count of the indictment charged the defendant with a misdemeanor, for that the said L. G. Pippin did then and there unlawfully and with force and arms permit one Fay Doan Parker to remain in the place of said defendant, and premises of said place and being known as Live Oak Filling Station for the purpose of prostitution and assignation; contrary to the laws of said State, the good order, peace and dignity thereof.

The third count of the indictment charged the defendant with a misdemeanor, for that the said L. G. Pippin did then and there unlawfully and with force and arms permit one Carolyn Cadwell to remain in said place known as Live Oak Filling Station, and premises of same, for the purpose of prostitution and assignation; contrary to the laws of said State, the good order, peace and dignity thereof.

To this indictment the defendant demurred and also moved to quash the same upon the grounds.

(1) That counts two and three were unconstitutional, in that said counts refer to a crime as defined in the Code (Ann. Supp.), §§ 26-6203 to 26-6207 inclusive, which said sections are codified from the acts of the legislature of 1943 (Ga. L. 1943, pp. 568 to 571 inclusive), in that said Code sections and said law contravene and are repugnant to article I, section I, paragraph V of the Constitution of Georgia, for that said act deprives this defendant of a "public and speedy trial by an impartial jury," since § 26-6206 permits the reputation and character of the defendant to be put in issue upon the trial of said case and declares that said character and reputation shall be admissible in evidence in support of any charge thereunder.

(2) That counts two and three of said indictment are unconstitutional, in that they violate, contravene, and are repugnant to article III, section VII, paragraph XVI of the Constitution of Georgia, which provides that "No law, or section of the Code, shall be amended or repealed by mere reference to its title, or to the number of the section of the Code, but the amending, or repealing act, shall distinctly describe the law to be amended or repealed, as well as the alteration to be made," in that the act of 1943 and the Code sections taken therefrom repeal § 38-202 of the Code of Georgia, which provides that the general character of the parties, and especially their conduct in other transactions, are irrelevant matter, unless the nature of the action involves such character and renders necessary or proper the investigation of such conduct, since, under the provisions of said act and Code (Ann. Supp.), § 26-6206, it is provided that, "in the trial of any person, charged with a violation of any of the provisions of this law ( §§ 26-6203 to 26-6207), testimony concerning the reputation or character . . of the defendant or defendants shall be admissible in evidence in support of a charge thereunder."

(3) Because the indictment is fatally defective and void, in that the defendant is charged with maintaining and keeping a lewd house, under § 26-6102 of the Code, in count one, and is charged in counts two and three with committing the crime of prostitution and assignation under the Code (Ann. Supp.), § 26-6203, and these offenses are entirely separate, dissimilar, and distinct, and cannot be joined in one indictment.

(4) Because the indictment charges the defendant with an offense amounting to a misdemeanor under Code § 26-6102, and also with a felony of a dissimilar nature entirely separate and distinct, as defined in Code § 26-6203.

Grounds five and six of the demurrers are based upon the grounds that each of counts two and three of the indictment embraces two separate and distinct offenses of equal degree and involves and constitutes separate and distinct transactions, as defined by Code § 26-6205, and that said counts are void.

Ground seven is stricken as referring to a count four, which does not appear in the indictment.

Ground eight demurs to counts two and three for the reason that they are void, in that said counts were drawn under Code § 26-6203, and said section of the Code fixes and defines different grades of punishment for first and second offenses committed thereunder, and said counts are indefinite, void, and uncertain, in that they fail to put the defendant on notice as to whether he is charged with a first offense or a second offense, and he cannot properly prepare his defense on account of the ambiguity of the allegations in these counts.

In grounds nine and ten the defendant demurs to each of counts two and three, upon the ground that each fails to allege, set up, and charge a crime under Code § 26-6203, or any other section, pertaining to prostitution or assignation as defined in the acts of 1943, or Code §§ 26-6203 through 26-6207.

The other ground of the demurrer, designated and described in one of the demurrers appearing in the record as ground twelve, and in the other as ground ten, is abandoned by counsel in his brief.

These grounds were overruled by the trial court, exceptions pendente lite were duly presented and certified, and error is assigned thereon in the bill of exceptions.

After the ruling on demurrer, counsel for the defendant presented to the court his written motion as follows:

"Now comes the defendant and moves this Honorable Court to require the solicitor-general to elect upon which one of the three counts this defendant is to be tried, inasmuch as said indictment charges a distinct and separate offense in count 1 to that charged in counts 2 and 3, and furthermore defendant prays and demands an election between count 1 and counts 2 and 3, inasmuch as count 1 charges a dissimilar, distinct and separate offense from that which is charged in counts 2 and 3."

To the judgment overruling this motion the defendant also excepted pendente lite, and error is assigned thereon.

On the trial the jury returned a general verdict of guilty against the defendant, who duly filed his motion for a new trial, twice amended by the addition of ten special grounds, which will be referred to in the opinion; and to the judgment overruling his motion for a new trial the defendant also excepts. 1. While the Supreme Court has jurisdiction of a writ of error, such as this, where the constitutionality of a statute of this State is drawn in question, no such question will be determined if there is any other ground in the case upon which the court can possibly rest a decision. Burns v. State, 191 Ga. 60 (11 S.E.2d 350); Georgia Power Co. v. Decatur, 173 Ga. 219 (3) (159 S.E. 863).

A decision of the constitutional questions sought to be raised by grounds one and two of the defendant's demurrer is not necessary in this case, for the reason that the particular provision of the act of 1943 (codified as § 26-6206, Code, Ann. Supp.), which provides that, "in the trial of any person, charged with a violation of any of the provisions of this law [ §§ 26-6203 to 26-6207], testimony concerning the reputation or character . . of the defendant or defendants, shall be admissible in evidence in support of a charge thereunder," was not charged in the indictment, the second and third counts of which were based upon the provisions of the same act of 1943 (codified as § 26-6203, Code, Ann. Supp.), and was not invoked at any time during the trial, either by the charge to the jury or in the introduction or admission of testimony under the provisions thereof. Thus, whether this particular section of the act be subject or not subject to the constitutional attacks thereon, is not material in the present case. Price v. State, 202 Ga. 205 (42 S.E.2d 728). Moreover, even if this particular section of the act should be found to be subject to the constitutional attack made thereon and should be stricken, it would not destroy the general legislative scheme of the remainder of the act, but would leave § 26-6203, Code, Ann. Supp., intact; and it is upon this section that counts two and three of the present indictment are predicated. Bennett v. Wheatley, 154 Ga. 591 (115 S.E. 83); Miller v. Head, 186 Ga. 694, 713 (198 S.E. 680). Under the rulings here made, the judgment overruling grounds one and two of the defendant's demurrer was not harmful or reversible error.

2. The trial court did not err in overruling ground three of the defendant's demurrer. While the different counts of the indictment charge separate and distinct offenses, they are not dissimilar, but are of the same class or species, and were properly set out in the different counts of the same indictment.Webb v. State, 177 Ga. 414 (170 S.E. 252); Webb v.State, 47 Ga. App. 505 (170 S.E. 827).

3. Nor was the indictment subject to grounds four and eight of the demurrer. The defendant was not charged, as contended by the demurrer, with a misdemeanor in count one and with a felony in counts two and three, but was charged specifically in each count with the commission of a misdemeanor. While it is true that § 26-6203, Code, Ann. Supp., provides that any person shall be punished as for a misdemeanor upon conviction for the first offense and/or second offense, and upon conviction of a subsequent offense thereunder shall be punished as for a felony, in order to invoke the punishment as for a felony, the fact of a second previous conviction and sentence would have to be charged in the indictment (Tribble v. State, 168 Ga. 699,148 S.E. 593; McNabb v. State, 69 Ga. App. 885, 27 S.E.2d 246), and no such allegations appear in either the second or third count of the indictment.

4. Grounds nine and ten of the demurrer, directed to counts two and three of the indictment, are likewise without merit. These counts allege the offense charged in the terms and language of the Code section upon which they are predicated, and the allegations are sufficiently plain for the nature of the offenses to be easily understood by the jury. This was sufficient. Code, § 27-701; Rutherford v. State, 183 Ga. 301 (188 S.E. 442);Farrar v. State, 187 Ga. 401 (200 S.E. 803). The other grounds of the demurrer not specifically dealt with are without merit and are not of such nature as to require elaboration. The trial court properly overruled the demurrer.

5. In a case like this, where there are several counts in an indictment charging similar offenses, the question of whether the court will or will not require the solicitor-general to elect upon which count he will proceed is a matter within the sound discretion of the court, and it is not made to appear that the trial court abused its discretion in overruling the motion of the defendant to require the solicitor-general to make such election.Lascelles v. State, 90 Ga. 347 (4) (16 S.E. 945, 35 Am. St. R. 216); Webb v. State, 47 Ga. App. 505 (170 S.E. 827).

6. The first and second grounds of the amended motion for a new trial complain of the admission of certain testimony therein set out. While these grounds state various and sundry reasons why the evidence objected to should not have been admitted, they show that the only objection urged at the time the evidence was offered, and the only objection ruled on by the trial court, was that the evidence was "immaterial and irrelevant." This is not such an objection as would be reversible error to overrule.Hogan v. Hogan, 196 Ga. 822 (28 S.E.2d 74); Manley v.Combs, 197 Ga. 768 (9) (30 S.E. 485).

7. The third ground of the amended motion assigns error: "Because, during the progress of the trial and during the giving of evidence by a witness for the State, F. L. Chambless, the Honorable Court erred in this: That he did intimate or express an opinion to the jury as to what had been proved as follows, to wit: During the trial, counsel for movant made the following motion, ``I again move to rule out all of this testimony,' and the trial court said: ``Well, I am going to overrule the objection. It started at the Live Oak Station.'" This ground is insufficient to present any question for decision by this court, for the reason that it is not complete within itself. In order to determine whether the alleged error was harmful to the defendant, it would be necessary to refer to the brief of the evidence or to some other portion of the record to ascertain what the evidence was that was objected to and what it was that the court referred to as having "started at Live Oak Station." Dowdell v. State,200 Ga. 775 (3) (38 S.E.2d 780).

8. The fourth ground of the amended motion complains of the admission of testimony by the State's witness therein named, over the objection that the same was a conclusion on the part of the witness. Certainly that portion of the testimony thus objected to, wherein the witness testified that another girl, named by her, went out with three men while she was there, as to where she was at the time certain arrangements referred to were made with the defendant and his wife, and as to the location of a house referred to by her, and as to the condition of the rooms in the house, could not be said to constitute conclusions of the witness. All of the testimony thus objected to not having been subject to the objection urged, it was not reversible error to overrule the same. Collins Park Belt Co. v. Ware, 112 Ga. 663 (supra); Fambrough v. DeVane, 141 Ga. 794 (3) (82 S.E. 249).

9. In ground five of the amended motion for a new trial, error is assigned because the court gave in charge to the jury § 26-6203, Code, Ann. Supp., in its entirety, it being insisted that this was error for the reason that in thus charging the entire section the court went beyond the charges contained in the indictment and authorized a conviction of the defendant on charges other than those embraced in the indictment; and that this was error for the additional reason that the court did not, anywhere in its charge, give to the jury the definition of prostitution contained in § 26-6205, Code, Ann. Supp. While certain provisions of § 26-6203, Code, Ann. Supp., were not applicable to the charges contained in counts two and three of the indictment in this case, which were predicated upon this section, the reading of the inapplicable portions of the section was not harmful to the defendant, where the court thereafter charged: "Now, gentlemen of the jury, if you believe, beyond a reasonable doubt, that this defendant, L. G. Pippin, in this county and State aforesaid, on or about the time alleged in this bill of indictment, or at any time within two years prior to the date of the return and filing of this indictment into court by the grand jury, did keep these two girls, named in this indictment, to wit, Carolyn Cadwell and Fay Doan Parker, for the purpose of prostitution, as alleged in this indictment, then you would be authorized to find the defendant guilty as charged in this indictment. If you do not believe that the defendant is guilty, or if you have a reasonable doubt as to his guilt, it would be your duty to give the defendant the benefit of the doubt and acquit him." By thus confining the jury to a conviction of the defendant only in the event they found that the defendant "did keep these two girls, named in this indictment [naming them], for the purpose of prostitution, as alleged in this indictment," the court confined the charge to the particular portion of the section of the Code applicable to the offenses charged in the second and third counts of the indictment, and the defendant was not harmed thereby.Martin v. Hale, 136 Ga. 228 (2) (71 S.E. 133); Johnson v. Sherrer, 197 Ga. 392, 399 (29 S.E.2d 581); Thompson v. Mitchell, 192 Ga. 750 (2) (16 S.E.2d 540).

Nor was the excerpt from the charge last above quoted erroneous, as contended in the seventh ground of the amended motion, because the court did not, in connection therewith, give in charge to the jury the definition of prostitution contained in § 26-6205, Code, Ann. Supp., in the absence of an appropriate request therefor. Foote v. Kelley, 126 Ga. 799 (55 S.E. 1045); Atlantic Coast Line R. Co. v. Jones, 132 Ga. 189 (13) (63 S.E. 834); Worley v. State, 136 Ga. 231 (71 S.E. 153); Hicks v. State, 146 Ga. 221 (6) (91 S.E. 57).

10. What is ruled in the latter portion of the preceding division of this opinion applies with equal force to the assignments of error contained in the sixth and tenth grounds of the amended motion for new trial, which complain of the following excerpt from the charge: "Now, gentlemen of the jury, I charge you that it is a violation of the law for any person to keep, maintain or operate any house for the purpose of adultery and fornication, or to maintain and keep any prostitute there for the purpose of adultery and fornication, and it is a violation of the law for any person to solicit, aid or abet any prostitute in the commission of an unlawful act of fornication or adultery." This portion of the charge had application to the first count of the indictment, and while the expression therein contained, that "it is a violation of the law for any person to solicit, aid or abet any prostitute in the commission of an unlawful act of fornication or adultery," if standing alone, might be subject to the criticism that it was misleading or prejudicial for the reason that it allowed the jury to convict the defendant for soliciting, aiding, or abetting any prostitute in the commission of any act of unlawful fornication or adultery beyond and off of his premises, when considered in the light of its immediate context, as it should be, it must have been understood by the jury to refer to the soliciting, aiding, or abetting of any prostitute in the commission of any unlawful act of fornication or adultery at the house alleged as having been kept and maintained by the defendant for that purpose. So construed, the charge is not erroneous for any reason assigned.

11. Ground eight of the amended motion for new trial complains because the court nowhere in its charge instructed the jury on the law of circumstantial evidence. This case was not one depending wholly upon circumstantial evidence, and the failure of the trial judge to charge the law touching such evidence, in the absence of an appropriate request therefor, furnishes no ground for a new trial. Hicks v. State, 146 Ga. 221 (4) (supra);West v. State, 200 Ga. 566 (3) (37 S.E.2d 799); Swint v. State, 203 Ga. 430 (3) (47 S.E.2d 65).

12. Error is assigned in the ninth special ground, because the court failed to give in charge to the jury Code § 38-414, which provides: "The confession of one joint offender or conspirator, made after the enterprise is ended, shall be admissible only against himself." It is insisted by the defendant that this section should have been given in charge, because the witness, F. L. Chambless, who testified on the trial in behalf of the State, was, under his own testimony, a coconspirator and a joint offender under the crime charged in the indictment, he having testified that he arranged with the defendant and paid him the sum of thirty dollars for the use of the girl named in the second count of the indictment, and after having so made arrangements with and paid the defendant for this girl, carried her off to a place known as the "Whispering Pines," where they spent the night together and where he had intercourse with her. The Code section referred to has no application to a situation such as disclosed by the record here. No confession on the part of the witness, F. L. Chambless, testified to by any other witness, was offered or admitted in evidence. He was sworn as a witness for and testified in behalf of the State, and was a competent witness. Rawlins v.State, 124 Ga. 31 (10) (52 S.E. 1). It was not error to fail to give this section in charge to the jury.

13. While we have not set out the evidence adduced on the trial, we have carefully examined the same, and it amply authorized the verdict. The trial court did not err in overruling the motion for a new trial.

Judgment affirmed. All the Justices concur.