Opinion
33382.
DECIDED MAY 11, 1951.
Violating liquor law; from Thomas Superior Court — Judge Lilly. October 26, 1950.
A. J. Whitehurst, for plaintiff in error.
J. B. Edwards, Solicitor-General, contra.
1. A plea of nolo contender is deemed and held to be jeopardy of the defendant within the meaning of Article I, Section I, Paragraph VIII of the Constitution of the State of Georgia ( § 2-108) after sentence has been imposed.
2. Where the facts required to support a later indictment would have been sufficient, if proved, to procure a conviction of the same offense under a former accusation upon which the defendant had entered a plea of nolo contender and had been fined and sentenced to service on the public works, and the time of the commission of the offense alleged in the accusation antedated the later indictment only a year and six months, the point that the accused, upon the trial of the later indictment, was put in jeopardy, as to a portion of the time covered by the accusation, is properly raised by a plea of former jeopardy; and, where the evidence introduced upon the plea of former jeopardy shows this to be the case, it is error for the trial court to direct a verdict against the plea of former jeopardy.
DECIDED MAY 11, 1951.
Under an indictment returned in the Superior Court of Thomas County on January 17, 1950, the defendant, Oscar Key, was charged with the general offense of possessing non-tax-paid alcoholic liquors on July 6, 1948. By a plea of former jeopardy, the defendant alleged that under an accusation filed in the City Court of Thomasville on July 2, 1948, he had been charged with the general offense of possessing non-tax-paid alcoholic liquors on June 12, 1948, to which accusation he had entered a plea of nolo contendere, and that on September 27, 1948, he had been fined and sentenced to serve on the public works and that under such circumstances he could not be tried under the present indictment for the same general offense. The State traversed the plea of former jeopardy and after the introduction of the evidence for both sides, the court directed a verdict against the plea of former jeopardy and the jury found the defendant guilty as charged. His motion for a new trial, based on the usual general grounds and one special ground, assigning error on the court's directing a verdict against his plea of former jeopardy, was overruled and he excepted.
1. By the terms of the act of 1946 (Ga. L. 1946, p. 142, Code, Ann. Supp., § 27-1410), a plea of nolo contendere "shall be deemed and held to be jeopardy of the defendant within the meaning of Article I, Section I, Paragraph VIII of the Constitution of the State of Georgia [§ 2-108] after sentence has been imposed."
2. "On the trial of an indictment [or accusation] for a misdemeanor the State is not restricted to proving that the offense was committed on the date alleged, but may prove that it was committed at any time within two years preceding the finding of the indictment [or filing of the accusation]." Webb v. State, 13 Ga. App. 733 ( 80 S.E. 14); Cole v. State, 120 Ga. 485 ( 48 S.E. 156).
Under the indictment returned in the Superior Court of Thomas County on January 17, 1950, charging the defendant with the possession of non-tax-paid liquor, the defendant was subject to be convicted of any such offense committed within the two years immediately preceding the return of the indictment; namely, he was subject to be convicted of any such offense committed between January 17, 1950 and January 17, 1948. It follows, therefore, that under the indictment returned on January 17, 1950, the defendant could be convicted of the offense committed on June 12, 1948, to the accusation for which he had already filed a plea of nolo contendere and had been fined and sentenced to serve on the public works. Thus, under the indictment returned on January 17, 1950, the defendant is twice placed in jeopardy of being convicted of the offense committed on June 12 1948. This would clearly constitute a violation of Article I, Section I, Paragraph VIII of the Constitution of the State of Georgia. Webb v. State, supra.
This case belongs to that "class of cases where the State by the generality of the indictment may not be confined to proof of any specific date or transaction within the period of limitation, with the result that a prosecution for a particular crime will usually operate as a bar for any such offense committed within the period of limitation previously to the indictment. Craig v. State, 108 Ga. 776 (2) ( 33 S.E. 653); Bryant v. State, 97 Ga. 103, 104 (supra); Webb v. State, 13 Ga. App. 733 (1-3) 735 ( 80 S.E. 14); Hudgins v. State, 22 Ga. App. 242 ( 95 S.E. 875); Mills v. State, 35 Ga. App. 471 (2, 3) ( 134 S.E. 141); 22 C. J. S. 419, § 280." Harris v. State, 193 Ga. 109, 117 ( 17 S.E.2d 573, 147 A.L.R. 980); Morgan v. State, 119 Ga. 964, 966 ( 47 S.E. 567).
As was said in Sable v. State, 14 Ga. App. 816, 819 ( 82 S.E. 379), "The time of the offense [for which the defendant was indicted on January 17, 1950] should have been confined in such specific terms as would have restricted the proof to a transaction subsequent to the filing of the prior accusation [in the City Court of Thomasville]. In other words, the second accusation [indictment] should not only have alleged, pro forma, the day upon which the offense was committed [July 6, 1949], so as to show that the offense was not barred by the statute of limitations, but should also have stated unequivocally that the offense charged in the pending accusation was subsequent to .
. [July 2, 1948, the date of the filing of the accusation in the City Court of Thomasville.]"
The trial court erred in directing a verdict against the plea of former jeopardy and all further proceedings were nugatory.
Judgment reversed. Gardner and Townsend, JJ., concur.