Summary
In Crumley v. City of Atlanta, 68 Ga. App. 69, 73 (22 S.E.2d 181) (1942) this court held: "`To avoid any confusion on this subject [former jeopardy], we adopt the rule... that the plea of autrefois acquit or convict is sufficient, whenever the proof shows the second case to be the same transaction with the first.' Charging the same crime in two different ways will not justify two prosecutions.
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29568.
DECIDED OCTOBER 1, 1942.
Certiorari; from Fulton superior court — Judge A. L. Etheridge. January 30, 1942.
Frank A. Bowers, for plaintiff in error. John A. Boykin, solicitor-general, J. C. Savage, E. L. Sterne, J. C. Murphy, Frank A. Hooper Jr., contra.
1. Charging the same crime in different ways will not justify two prosecutions.
2. Merely different descriptions in two indictments or charges will not constitute different offenses.
3. But where an interval of two or three hours elapsed, while the defendant was on the same "drunk," between disorderly conduct at 1030 Allene Avenue, Atlanta, and disorderly conduct at 358 Pryor Street, Atlanta, the jury were authorized to find that two distinct offenses of disorderly conduct were committed, although they occurred on the same day and in the same city.
DECIDED OCTOBER 1, 1942.
The defendant was convicted in the police court of the City of Atlanta, Georgia, on August 20, 1941, on four separate charges. "The four cases were jointly tried, that is, they were all tried at the same time and the petitioner entered a plea of not guilty to each of said charges." The ordinances alleged to have been violated were as follows: "Section 874. Any person, who shall, within the corporate limits of Atlanta, be guilty of an act of public indecency, tending to debauch the morals of any of the citizens, or of quarrelling, or of using obscene, vulgar, profane language, or malicious mischief, or otherwise act in a disorderly manner (which offense is not recognized as penal by the laws of this State) shall, on conviction, pay a fine of not exceeding one hundred dollars and costs or be imprisoned in the station house not more than thirty days, in the discretion of the recorder's court." "Section 878. Any person who shall be found drunk, hooting, hallooing, or making any other unnecessary or unusual noise, to the disturbance of any citizen, may be fined not exceeding one hundred dollars and costs, or be imprisoned not exceeding thirty days."
The petition for certiorari alleges that there is attached a complete copy of the evidence adduced at said trial. This copy lists four cases in the following order: 19569, charging disorderly conduct; 19568, disorderly conduct; 19566, operating motor vehicle while under the influence of intoxicating liquor; 19567 ____. The brief of evidence follows:
"Frank Watson (officer): `On August 4th we answered a call to 1030 Allene Avenue. When we got there we got out and talked to Mrs. Sams there. She told us a boy by the name of James Crumley who lived at 1030 Allene Avenue, which is a duplex, was the one causing the trouble, and so we got in the car and circles the block, and could not find him, and drove back to West End, and something like ten or fifteen minutes we got a second call, and she told us he was in a bakery truck, and so we hunted around there and went up there and spoke to the driver of the bakery truck, and we asked him if he knew him and he said he did; so we circles back around there and could not find him, and a couple to three hours or something like that elapsed and we got a call over on Pryor Street, and when we got over there we found out it was James Crumley, so we sat there talking to her, and here came James up in his car, and so Mrs. Sams can tell you what happened out there.' Mrs. Sams: `He came out on Sunday afternoon and he was drunk and was cursing, and came over to my side and was cursing, and was cursing my boys, and he came out on the street and still cursed, and used terrible language, and I told him I was going to call the police to him, and he said, "Go ahead and call them," and he cursed some more. Well, I went and called them, and when they came out he was gone. So he left and did not come back any more until the next day.' [All of which took place in the City of Atlanta, Georgia.]
"The Recorder: `Case No. T-19568.' Frank Watson: `This is on the same day, August 4th [ two or three hours later]. We were over there talking to this lady here, Cleo Clark, and she can tell you what happened.' Cleo Clark: `My name is Cleo Clark. I live at 358 Pryor Street. He was drunk and was at my house, and he was drunk in his car, and he got out and came in the house. I was in my room dressing and he came up and came in the living room and sat on the divan, and my mother called me, I don't remember what time that was, and James said, "I want to see you;" and I said, "I don't want to have anything to do with you." And he said, "I am going to see you; I am not going to leave;" and he was sitting there, and his clothes was tore off of him; and I said, "Get up and go out of my house, I am not going to talk to you;" so he got up and walked out, and he was still standing in my yard. And the next time he walked back down in the hall, there is five rooms there, and he came out and walked around the back. He raised up the top of the trunk and got a jack and said he was going to hit the first man that got in the car. We all had drink a coca-cola and he had threw the bottle at me and I ran behind the fence, and Mr. Caldwell and them came back. James drove up there in his car and he was drunk.'" All of this happened in the City of Atlanta, Georgia.
The defendant in his brief in effect concedes that case No. 19566, charging operating a motor vehicle while under the influence of intoxicating liquor, was authorized. As to case No. 19567, he states in his petition for certiorari that it was not appealed because the court suspended the sentence in that case. As we construe the record, the testimony of Mrs. Sams above quoted refers to case No. 19569, and the testimony of Cleo Clark refers to No. 19568. If this interpretation be correct, the defendant was guilty of disorderly conduct in the first case, No. 19569, at 1030 Allene Avenue, and, later on in the same day, he was guilty of disorderly conduct, as charged in case No. 19568, at 358 Pryor Street. The defendant in his brief says: "In the case under present consideration we respectfully submit that the `disorderly conduct' charged to the defendant was only one case of `disorderly conduct' since, under all the evidence, there was only one arrest and the disorder was during one transaction and one intoxication on one day." He asks "that the judgment be reversed in part, i. e., that case number T-19569, the second conviction for `disorderly conduct,' be reversed."
It is a violation of § 878 of the city ordinance for any person to be "drunk, hooting, hallooing, or making any other unnecessary or unusual noise to the disturbance of any citizen." The court convicted the defendant of only one "drunk," alleged to have extended over a period of many hours. The one continuous "drunk" as disclosed by the evidence might be said to have been one continuous, uninterrupted act, which would bring it within what the law intends to express by the words "same criminal transaction," or one and the same offense of being drunk in violation of the city ordinance. Yet, a person may be guilty of committing the crime of being drunk by doing the acts prohibited in the section of the city ordinance against drunkenness without perpetrating the offense of disorderly conduct, even though he committed the acts referred to in the section prohibiting disorderly conduct. Blair v. State, 81 Ga. 629 ( 7 S.E. 855); Franklin v. State, 85 Ga. 570, 575 ( 11 S.E. 876); MacIntosh v. State, 116 Ga. 543 ( 42 S.E. 793); Bell v. State, 103 Ga. 397 ( 30 S.E. 294, 68 Am. St. R. 102).
There is no plea of former jeopardy in this case, yet, in determining the question of what is the "same transaction" in the instant case we might say that we recognize the rule in Georgia as laid down in Roberts v. State, 14 Ga. 8, 12 (58 Am. D. 528): "To avoid any confusion on this subject [the court said], we adopt the rule as it is otherwise more generally, and perhaps more accurately expressed, viz.: that the plea of autrefois acquit or convict is sufficient, whenever the proof shows the second case to be the same transaction with the first." Charging the same crime in two different ways will not justify two prosecutions. Holt v. State, 38 Ga. 187. Mere different descriptions in the two indictments or two charges will not constitute different offenses. Buhler v. State, 64 Ga. 504. The words "same offense" in our constitution, prohibiting a second jeopardy, do not signify the same offense eo nomine, but the same criminal act or omission. Hirshfield v. State, 11 Tex. App. 207. To illustrate: the stealing of several articles at the same time and at the same place, even though they belong to different owners, constitutes but one crime and can be prosecuted but once. One could not be charged in separate indictments with the larceny of each of these articles and be separately tried, convicted, and punished for the stealing of each of them. Stealing a horse, wagon, and harness, at the same time and place, is but one offense and is prosecutable but once. State v. Cameron, 40 Vt. 555. But it was held in Rex v. Birdseye, 172 Eng. Rep. (full reprint) 386, that an interval of one-half hour having elapsed between the taking of two articles, this made two distinct indictable offenses, although the articles, were taken from the same shop or storehouse of the prosecutor. See also Roberts v. State, 58 Am. Dec. Ex. Ann. 539.
We think the evidence authorized a finding that the disorderly conduct at 1030 Allene Avenue was a complete offense, separate from the disorderly conduct two or three hours later at 358 Pryor Street. Brown v. State, 85 Ga. 713 ( 11 S.E. 831). See Gully v. State, 116 Ga. 527 ( 42 S.E. 790).
The judge did not err in overruling the certiorari.
Judgment affirmed. Broyles, C. J., and Gardner, J., concur.