Summary
holding that two clockings in separate counties support a conviction in each county
Summary of this case from Nyman Motor Vehicle Op. Lic. CaseOpinion
31006.
DECIDED FEBRUARY 7, 1946. REHEARING DENIED MARCH 27, 1946.
Unlawfully driving automobile; from Decatur city court — Judge Guess. July 23, 1945. (Application to Supreme Court for certiorari.)
George G. Finch, for plaintiff in error.
D. P. Philips, solicitor, Walter P. McCurdy, James A. Branch, Thomas B. Branch Jr., contra.
One who begins the operation of his automobile in one county at a greater rate of speed than fifty-five miles per hour upon a public highway, and who voluntarily, continuously and uninterruptedly operates his automobile into or through one or more counties, is guilty of illegally operating such automobile in each county where he thus operates it.
DECIDED FEBRUARY 7, 1946. REHEARING DENIED MARCH 27, 1946.
Roy Hall, hereinafter called the defendant, was arraigned on the 23rd day of July, 1945, in the city court of Decatur, DeKalb County, Georgia, on an accusation charging that he did on the 20th day of May, 1945, "operate an automobile upon the public highway to-wit: Buford Highway, between Gwinnett County line and Fulton County line, in said State and County, at a greater rate of speed than fifty-five miles per hour."
Before pleading to the merits, the defendant filed a plea in bar, former jeopardy. The essential allegations of the plea sufficient to a determination of the question before us are:
"1. That on the 14th day of July, 1945, in the Superior Court of Gwinnett County this defendant was placed on trial for the offense of speeding, a copy of the accusation in said court is hereto attached and made a part hereof.
"2. That upon arraignment, this defendant pled guilty to said offense in the said Superior Court and was sentenced by the court to pay a fine of Two Hundred Dollars or serve twelve months on the public works, as by law provided, a certified copy of said sentence is hereto attached and made a part hereof.
"3. That the offense to which this defendant pled guilty in said Gwinnett Superior Court is the same offense for which this defendant is now charged in this court.
"4. That the offense charged in the accusation in said Gwinnett Superior Court and the accusation in this court covered the same continuous uninterrupted act of speeding which was begun in Gwinnett County and extended into DeKalb County and was thus a single offense.
"5. That to compel this defendant to stand trial for said offense in DeKalb County for the same offense for which he has heretofore been sentenced in the Superior Court of Gwinnett County would put this defendant in double jeopardy, and would deny him the rights guaranteed by the Constitution of Georgia, to wit, paragraph 8, section 1, as follows: `No person shall be put in jeopardy of life or liberty more than once for the same offense, save on his or her own motion for a new trial after conviction or in case of mistrial.'
"6. That the Superior Court of Gwinnett County had jurisdiction of the offense charged and of the person of your petitioner.
"7. That the City Court of Decatur had concurrent jurisdiction of the offense and of your petitioner.
"8. That as a result of the trial and sentence in the Superior Court of Gwinnett County for the identical offense charged in the City Court of Decatur, both of the charges in said courts covered the same continuous uninterrupted act of speeding, the City Court of Decatur lost jurisdiction of the offense and the person of your petitioner, because of the constitutional provision above set forth, and this defendant pleads said former jeopardy in bar of further prosecution and liability on said case."
The essential portions of the indictment attached to the plea show: The defendant did "on the 20th day of May, 1945 . . Unlawfully . . drive and operate an automobile, same being a motor vehicle, on a certain highway in Gwinnett County known as Atlanta-Buford paved highway, at a speed greater than fifty miles per hour." At the instance of the State the judge of the city court sustained a motion to dismiss the plea as being insufficient in law as a plea of former jeopardy. The case proceeded to trial. The defendant was convicted and a sentence imposed by the city court of Decatur, DeKalb County. The sole question argued here is on the judgment of the court dismissing the plea.
It will be observed that the indictment of Gwinnett County superior court, a copy of which is attached to the plea, alleges that the defendant in Gwinnett County operated his automobile at a speed greater than fifty miles per hour, whereas the law specifies an offense when the automobile was operated at a speed in excess of fifty-five miles per hour. Counsel for both the State and the defendant argue at length on the question as to whether or not the indictment in Gwinnett County was void or valid for the reason that the rate of speed alleged therein did not meet the requirements of the statute. The State contends that for this reason the indictment in Gwinnett County was void and can not be the basis of a plea of former jeopardy. On the other hand, the defendant contends that when he entered a plea of guilty to the indictment in Gwinnett County and satisfied the sentence imposed upon him in that county, in effect the State was estopped from contending that the indictment was void and that moreover the allegation to the effect that it was in excess of fifty miles per hour, construed in connection with other allegations in the indictment that he unlawfully operated the automobile, in Gwinnett County in excess of fifty-five miles per hour.
As we view the case, we may assume that the defendant is correct in his contention and that the proceedings in Gwinnett County are sufficient in law upon which to base a conviction in Gwinnett County, still we are of the opinion that the court did not err in striking the plea of former jeopardy. The statute, with reference to operating an automobile upon the public highways of this State, was enacted for the protection of the users of the highway throughout the State, with the county as a unit. Quoting from 22 C. J. S. 266, § 175: "It is a general rule that, in the absence of constitutional or statutory provisions to the contrary, a criminal offense must be prosecuted in the county or district in which the offense was committed, unless the venue is changed." See also § 176 of the same authority. It is contended by the defendant that the offense charged in the indictment in Gwinnett County and the offense charged in the accusation of the city court of Decatur, DeKalb County, "covered the same continued uninterrupted act of speeding which was begun in Gwinnett County and extended into DeKalb and was thus a single offense." To this we can not agree. When the defendant voluntarily and criminally began operating his automobile in excess of fifty-five miles per hour and voluntarily and continuously and uninterruptedly extended his said criminal act into DeKalb County (an adjoining county) he violated the statute in each county of Gwinnett and DeKalb. A conviction for violating the statute in Gwinnett County under such circumstances would be no bar to a prosecution in DeKalb County, an adjoining county. We specifically requested counsel to file an additional brief discussing this principle. No authority has been submitted to us contrary to what we have herein decided, and from our own research we have been unable to find any decision in any jurisdiction to the contrary. In principle and by analogy this court has passed on the question in the case of Lunsford v. State, 60 Ga. App. 537 (2), and division 2. Judge MacIntyre, speaking for the court, clearly, exhaustively and convincingly discussed this principle. We feel that we can add nothing here to what was said there.
Judgment affirmed. Gardner, J., concurs.
Whether or not the principle in the decision of State v. Shimman, 122 Ohio St. 522 ( 172 N.E. 367), to the effect that "`a continuous and uninterrupted transportation of intoxicating liquor, whether within one county or in more than one county, constitutes a single offense, punishable in either county, but not in both; and a conviction therefor in one county may be pleaded in bar to a prosecution in the other,' and other case of similar import (73 A.L.R. 1502 and note), would be adopted as the rule in this State in a proper case, need not now be determined, since the facts here presented are in our opinion materially different. It will be noted that in the above case there were not a series of distinct and separate acts, but merely one continuous, uninterrupted act which extended into more than one county. It is to be further noted that in that case a very vigorous dissent from the majority ruling was filed, in which dissent three of the judges concurred. Moreover, the rule is that all crimes must be tried in the counties wherein they are committed." Lunsford v. State, 60 Ga. App. 537, 544 ( 4 S.E.2d 112). "Webster defines `transport' as to carry or convey from one place to another; again, to remove from one place to another; and throughout all the deviations of the word `transport' we find the same part of the definition to remove. Columbia Conduit Co. v. Commonwealth, 90 Pa. 307, 309." 42 Words Phrases (Perm. ed.) 360. "`Transportation' implies the taking up of persons or property at some point, and putting them down at another. . ." 42 W. P. Perm. 361. In the Shimman case the majority opinion seems to have held that the indictment charged a general continuing offense of transporting intoxicating liquors between definite termini, and the conviction of such continuing offense between the alleged termini was a bar to any other prosecution of transporting liquors between the same termini. Here the first accusation of speeding was that it was so done in Gwinnett County, Georgia, and thus impliedly alleged an offense between definite termini, which termini are the county lines of Gwinnett County. The second accusation, the one in the instant case, was expressly for speeding "between the [termini of the] Gwinnett County line and the Fulton County line" in DeKalb County. In broad terms, where there is no merger of misdemeanor into felony, or felony into treason, the criminal transaction is divisible at whatever place it can be so cut, and the part so carved out will fill the law's definition of any crime. 1 Bishop's New Criminal Law 480 (2), § 794. The county line between Gwinnett and DeKalb Counties so cut the criminal transaction that the part of the criminal transaction in DeKalb County will fill the law's definition of the crime charged in DeKalb County. If the defendant had been acquitted or convicted under the accusation of the crime charged in Gwinnett County he could still be convicted for another crime charged in DeKalb County. 1 Bishop's New Criminal Law, 628, § 1049 (1). While in Georgia we have the same transaction test, the responsibility of a single county cannot be adequately met if it is dominated or controlled by another or other counties. Automobile drivers who drive in excess of 55 miles per hour on a public highway are violating the automobile statutes designed for the protection of human life and limb, which violations so often result in permanent injuries or death. If such violations going regularly from county to county in high powered automobiles at such unlawful speeds with no interruption, and to the menace of our citizens, are subject to only a nominal fine imposed for speeding in a single county and such must be accepted as a just punishment for such flagrant offenses committed in many counties, the situation is nothing short of calamitous. If county courts, or city courts as here, which had jurisdiction only in their respective counties in criminal prosecutions for misdemeanors are limited to their county territorial jurisdiction, then it follows that each county is responsible for the peaceful and orderly government within its territory only, and I do not think that one county should be the mentor of law enforcement in another county where the acts of the criminal things could be carved out into a specific crime.