Construction with more specific sentencing statute.

- It was error to charge as to a minimum period of imprisonment under former Code 1933, § 26-401, where the statute under which defendant was charged with possession of secobarbital provided for both a fine and imprisonment "not to exceed two years" but did not provide a minimum term of imprisonment. Neal v. State, 130 Ga. App. 708, 204 S.E.2d 451 (1974) (see O.C.G.A. § 16-1-3).

Term "another" in O.C.G.A. § 16-6-2(a) (sodomy) includes the accused person. Porter v. State, 168 Ga. App. 703, 309 S.E.2d 919 (1983).

Term "person."

- On remand from the U.S. Supreme Court, a class action suit filed by legal employees of a Georgia rug manufacturer, alleging state RICO violations based on the widespread hiring of illegal aliens in order to depress the hourly wages of its workers, survived a motion to dismiss for failure to state a claim; the federal appellate court deferred to the Supreme Court of Georgia holding that O.C.G.A. § 16-14-4, when read in conjunction with O.C.G.A. §§ 1-3-3(14) and16-1-3(12), provided that "any person" could be sued under the Georgia RICO statute, including corporations such as the rug manufacturer. Williams v. Mohawk Indus., 465 F.3d 1277 (11th Cir. 2006), cert. denied, mot. denied, 549 U.S. 1260, 127 S. Ct. 1381, 167 L. Ed. 2d 174 (2007).

Term "property."

- Taxpayers were not entitled to a theft loss under 26 U.S.C.S. § 165(e) with respect to a decline in value of publicly traded stock, as a theft by taking did not occur under O.C.G.A. § 16-8-2 because a corporation did not unlawfully take or appropriate any property from the taxpayer, and there was no evidence of any intention by the corporation or its executives to deprive the taxpayer of the property at issue. Although corporate stock, which was in the taxpayer's control after he exercised his stock options, subsequently declined in value, there was no evidence that the corporate executives had any specific intent with regard to the taxpayer to take or appropriate his stock by devaluation or by any other means; rather, the goal of the corporation, including its later-convicted executives, was to increase the value of the stock, including any stock owned and controlled by the taxpayer. Schroerlucke v. United States, 100 Fed. Cl. 584 (Fed. Cl. 2011).

Term "prosecution".

- Prosecution of the defendants for theft by taking and criminal trespass in Calhoun County, O.C.G.A. §§ 16-7-21 (b) and16-8-2, was not prohibited by double jeopardy based on their prior entry into a pretrial intervention program under O.C.G.A. § 15-18-80(b) following charges of theft by receiving stolen property, O.C.G.A. § 16-8-7(a), in Irwin County because there was no prosecution in Irwin County within the meaning of O.C.G.A. §§ 16-1-3(14) and16-1-8(a)(1)-(2). Palmer v. State, 341 Ga. App. 433, 801 S.E.2d 300 (2017).

Fears must be those of a reasonable man, and not just the defendant's. Thus, where the defense was self-defense, the trial court did not err in excluding testimony, the purpose of which was to describe particular circumstances such as would excite the defendant's fears. Daniels v. State, 158 Ga. App. 476, 282 S.E.2d 118, rev'd on other grounds, 248 Ga. 591, 285 S.E.2d 516 (1981).

"Conviction".

- Entry of a guilty plea was not a judgment of conviction until sentence was imposed; therefore, a defendant who walked away from the courthouse after plea entry but before sentencing was not guilty of felony escape, but could be convicted only of misdemeanor escape. Dorsey v. State, 259 Ga. App. 254, 576 S.E.2d 637 (2003).

Remand for further determination was necessary because it was unclear whether one of defendant's convictions, which was a first offender conviction pursuant to O.C.G.A. § 42-8-60 et seq., was successfully completed, in which case there was no "conviction" as that term was defined under O.C.G.A. § 16-1-3(4) as there would have been no adjudication of guilt, or alternatively, whether the first offender sentence was violated and the trial court thereafter entered an adjudication of guilt and a sentence thereon, in which case it could be counted as one of the three felonies for purposes of recidivist sentencing under O.C.G.A. § 17-10-7(c). Swan v. State, 276 Ga. App. 827, 625 S.E.2d 97 (2005).

Prospective petit juror serving a sentence under the First Offender Act, O.C.G.A. § 42-8-60 et seq., had not been "convicted" within the meaning of O.C.G.A. § 15-12-163(b)(5), which allowed either the state or the accused to object to the seating of a juror who had been convicted of a felony; the trial court therefore erred in disqualifying the juror for cause. Humphreys v. State, 287 Ga. 63, 694 S.E.2d 316, cert. denied, 131 S. Ct. 599, 178 L. Ed. 2d 438 (2010).

Trial counsel was not ineffective as the defendant's guilty plea to speeding prior to the driving under the influence (DUI) of alcohol trial did not result in a conviction because the trial judge's oral announcement that the judge would accept the plea and would impose the sentence recommended by the state was not a judgment; and the trial judge did not enter the final written judgment of conviction and sentence on the guilty plea to speeding until after the DUI trial, at the same time and on the same order form as the judgment and sentence entered for the DUI offense; thus, the defendant was not subjected to any former prosecution, and the trial court would not have erred in denying the defendant's plea in bar. Hantz v. State, 337 Ga. App. 675, 788 S.E.2d 567 (2016).

False swearing constituted a felony.

- Defendant was not entitled to relief from defendant's sentence for false swearing, in violation of O.C.G.A. § 21-2-565, because the rule of lenity did not apply in that there was no uncertainty as to the applicable sentence for the crime, and the imposition of a five-year sentence was appropriate and within the sentencing range, under O.C.G.A. § 16-10-71, for the offense, which constituted a felony under O.C.G.A. § 16-1-3. Hogan v. State, 316 Ga. App. 708, 730 S.E.2d 178 (2012).

"Forcible felony."

- Child molestation constitutes a forcible felony for the purpose of establishing the defense of justification pursuant to O.C.G.A. § 16-3-21(a). Brown v. State, 268 Ga. 154, 486 S.E.2d 178 (1997).

When the defendant was charged with aggravated assault and family-violence battery arising from a chokehold the defendant applied to the defendant's pregnant wife, the defendant's motion for immunity was improperly granted because the defendant and the victim were married at the time of the altercation, they lived in the house where the incident occurred together, the victim routinely took care of the parties' small dog, and the victim was entitled to handle the dog, including putting the dog out of the house; and the defendant reacted to the victim's struggling against the chokehold by tightening the defendant's grip, which was not justified as the victim was not committing a forcible felony against the dog. State v. Morgan, Ga. App. , 814 S.E.2d 823 (2018).

Defense of personal property during aggravated assault, a forcible felony.

- Trial court did not commit plain error in charging the jury because the jury was charged that the defendant's use of deadly force in defense of property would be justified if reasonably believed to be necessary to prevent the commission of a forcible felony and that aggravated assault was a forcible felony; thus, the jury had sufficient direction in order to intelligently consider the defense-of- personal-property theory of justification based on the defendant's claim that the victim committed aggravated assault when the victim lunged at the individual holding the gun and attempted to wrestle the gun away from the other individual. Hood v. State, 303 Ga. 420, 811 S.E.2d 392 (2018).

State carried burden of disproving justification defense.

- Trial court did not err in determining that the state carried the state's burden of introducing evidence that disproved the defendant's alleged justification for the defendant's use of deadly force because the defendant intentionally fired a gun at the defendant's fiancee and the fiancee's three children while they were sitting in the fiancee's car and it was within the jury's province to reject the defendant's contention that the defendant was afraid the fiancee was trying to run the defendant over. Williams v. State, Ga. App. , S.E.2d (Aug. 8, 2018).

Age at the time of the offense.

- Defendant did not show that pursuant to O.C.G.A. § 16-1-3 (1) either the defendant or the state raised the issue as to the defendant's age at the time of the crimes, and thus, neither an allegation nor proof of the defendant's age was necessary to show the defendant's capacity for committing the crimes charged. Construed most strongly in support of the verdicts, the evidence was sufficient to enable a rational trier of fact to find beyond a reasonable doubt that the defendant was guilty of the crimes of child molestation and aggravated child molestation as charged in the indictment. Adams v. State, 288 Ga. 695, 707 S.E.2d 359 (2011).

Cited in Massey v. State, 226 Ga. 703, 177 S.E.2d 79 (1970); Moore v. State, 228 Ga. 662, 187 S.E.2d 277 (1972); Gordon v. State, 127 Ga. App. 308, 193 S.E.2d 255 (1972); Chandle v. State, 230 Ga. 574, 198 S.E.2d 289 (1973); Pope v. State, 129 Ga. App. 209, 199 S.E.2d 368 (1973); Andrews v. State, 130 Ga. App. 2, 202 S.E.2d 246 (1973); Cauley v. State, 130 Ga. App. 278, 203 S.E.2d 239 (1973); E.P. v. State, 130 Ga. App. 512, 203 S.E.2d 757 (1973); Walker v. Caldwell, 476 F.2d 213 (5th Cir. 1973); White v. Henry, 232 Ga. 64, 205 S.E.2d 206 (1974); Key v. State, 131 Ga. App. 126, 205 S.E.2d 510 (1974); Walker v. State, 132 Ga. App. 274, 208 S.E.2d 5 (1974); DeFoor v. State, 233 Ga. 190, 210 S.E.2d 707 (1974); Baxter v. State, 134 Ga. App. 286, 214 S.E.2d 578 (1975); Hall v. Hopper, 234 Ga. 625, 216 S.E.2d 839 (1975); Moore v. State, 137 Ga. App. 735, 224 S.E.2d 856 (1976); White v. State, 138 Ga. App. 470, 226 S.E.2d 296 (1976); Brown v. State, 143 Ga. App. 256, 238 S.E.2d 258 (1977); Singleton v. State, 143 Ga. App. 387, 238 S.E.2d 743 (1977); Singleton v. State, 146 Ga. App. 72, 245 S.E.2d 473 (1978); Busbee v. Reserve Ins. Co., 147 Ga. App. 451, 249 S.E.2d 279 (1978); Manemann v. State, 147 Ga. App. 747, 250 S.E.2d 164 (1978); State v. Raybon, 242 Ga. 858, 252 S.E.2d 417 (1979); State v. Moore, 243 Ga. 594, 255 S.E.2d 709 (1979); Ratliff v. State, 150 Ga. App. 695, 258 S.E.2d 324 (1979); Ramsey v. Powell, 244 Ga. 745, 262 S.E.2d 61 (1979); State v. Davis, 246 Ga. 761, 272 S.E.2d 721 (1980); Crook v. State, 156 Ga. App. 756, 275 S.E.2d 794 (1980); Holloway v. McElroy, 632 F.2d 605 (5th Cir. 1980); State v. Shepherd Constr. Co., 248 Ga. 1, 281 S.E.2d 151 (1981); State v. Roulain, 159 Ga. App. 233, 283 S.E.2d 89 (1981); Collins v. State, 160 Ga. App. 680, 288 S.E.2d 43 (1981); Morgan v. State, 161 Ga. App. 484, 287 S.E.2d 739 (1982); Coppola v. State, 161 Ga. App. 517, 288 S.E.2d 744 (1982); Wilson v. State, 250 Ga. 630, 300 S.E.2d 640 (1983); Hambrick v. State, 174 Ga. App. 444, 330 S.E.2d 383 (1985); Brown v. State, 177 Ga. App. 284, 339 S.E.2d 332 (1985); Smith v. State, 190 Ga. App. 246, 378 S.E.2d 493; Rucker v. State, 191 Ga. App. 108, 381 S.E.2d 91 (1989); Griffin v. State, 199 Ga. App. 646, 405 S.E.2d 877 (1991); Leslie v. State, 211 Ga. App. 871, 440 S.E.2d 757 (1994); Kelley v. State, 235 Ga. App. 177, 509 S.E.2d 110 (1998); State v. Lockett, 259 Ga. App. 179, 576 S.E.2d 582 (2003); Middleton v. State, 264 Ga. App. 615, 591 S.E.2d 493 (2003); Roberts v. State, 280 Ga. App. 672, 634 S.E.2d 790 (2006); In the Interest of P.R., 282 Ga. App. 480, 638 S.E.2d 898 (2006); Lee v. State, 283 Ga. App. 826, 642 S.E.2d 876 (2007); Leachman v. State, 286 Ga. App. 708, 649 S.E.2d 886 (2007); Burnette v. State, 291 Ga. App. 504, 662 S.E.2d 272 (2008); Land v. State, 291 Ga. App. 617, 662 S.E.2d 368 (2008); Hollis v. State, 295 Ga. App. 529, 672 S.E.2d 487 (2009); State v. Canup, 300 Ga. App. 678, 686 S.E.2d 275 (2009); Moreland v. State, 304 Ga. App. 468, 696 S.E.2d 448 (2010); DeLong v. State, 310 Ga. App. 518, 714 S.E.2d 98 (2011); Wells v. State, 313 Ga. App. 528, 722 S.E.2d 133 (2012); State v. Ogilvie, 292 Ga. 6, 734 S.E.2d 50 (2012); State v. Newton, 294 Ga. 767, 755 S.E.2d 786 (2014); Banks v. State, 329 Ga. App. 174, 764 S.E.2d 187 (2014); Hood v. State, Ga. , S.E.2d (Mar. 5, 2018).

What constitutes "public place".

- What constitutes a "public place" within the meaning of former Code 1933, § 26-401 is a question of fact which must be proved or disproved by evidence in each case. Rushing v. State, 133 Ga. App. 434, 211 S.E.2d 389 (1974) (see O.C.G.A. § 16-1-3(15)).

Whether the act giving rise to a charge of public indecency was performed in a "public place" within the meaning of O.C.G.A. § 16-1-3 was a question of fact which the trial court properly left for the jury's resolution. Collins v. State, 191 Ga. App. 289, 381 S.E.2d 430 (1989).

Evidence supported defendant's conviction for abandonment of a controlled substance in a public place, in violation of O.C.G.A. § 16-13-3, because when defendant realized that undercover officers were approaching, defendant threw the crack cocaine that defendant was holding at a trash barrel on the abandoned residential lot where defendant was standing; the area was within the definition of "public place" under O.C.G.A. § 16-1-3(15), as it was viewed by persons other than the members of defendant's family or household. Woods v. State, 275 Ga. App. 471, 620 S.E.2d 660 (2005).

Jail is not a public place.

- Defendant's conviction for affray in violation of O.C.G.A. § 16-11-32 was reversed because the altercation occurred in the Hall County Jail, which was not a "public place" as required for conviction pursuant to O.C.G.A. §§ 16-1-3(15) and16-6-8(d). Singletary v. State, 310 Ga. App. 570, 713 S.E.2d 698 (2011).

Exposure in front of window.

- Evidence that defendant would come home from work, pull off clothes and be exposed in front of the window "[j]ust to get a thrill" was sufficient to support conviction for public indecency although the act was committed in a private residence. Hester v. State, 164 Ga. App. 871, 298 S.E.2d 292 (1982).

Exposure in marital bedroom and adjoining bathroom.

- Where defendant appeared nude in the presence of a teenage female babysitter in the marital bedroom and bathroom at his home, the evidence indicated that defendant by his own behavior converted his bedroom and bath from a private zone to a public place, where his nudity might reasonably be expected to be viewed by people other than members of his family or household, and thereby supports his conviction and sentence for public indecency. Greene v. State, 191 Ga. App. 149, 381 S.E.2d 310, cert. denied, 191 Ga. App. 922, 381 S.E.2d 310 (1989).

Visible from outside apartment.

- In prosecution for public indecency, although an apartment may come within the definition of "public place," in such a case the state must show that defendant was visible from outside the apartment. McGee v. State, 165 Ga. App. 423, 299 S.E.2d 573 (1983).

A shopping center parking lot is a public place. Clark v. State, 169 Ga. App. 535, 313 S.E.2d 748 (1984).

Defendant's loud and boisterous actions in backyard and driveway were sufficiently "public" to support a charge of public drunkenness. Ridley v. State, 176 Ga. App. 669, 337 S.E.2d 382 (1985).

Burglary from office which was not public.

- Jury was authorized to conclude that the defendant was "without authority" to enter the victim's office as the evidence did not show that the building where the offense occurred was open to the public and the victim's purse was located in the victim's private office; thus, sufficient evidence supported the defendant's burglary conviction. Streeter v. State, 331 Ga. App. 322, 771 S.E.2d 33 (2015).

Filing of accusation.

- Generally, a prosecution in state court commences with the filing by the solicitor of an accusation or Uniform Traffic Citation with the clerk of the court. State v. Rish, 222 Ga. App. 729, 476 S.E.2d 50 (1996).

Where the initial filing of a Uniform Traffic Citation (UTC) was not done by the solicitor, or with the solicitor's permission, the dismissal of the charges did not preclude the solicitor from refiling them on a new, formally drawn accusation, or on a UTC. State v. Rish, 222 Ga. App. 729, 476 S.E.2d 50 (1996).

Prosecution against defendant for simple battery was timely filed within two years, pursuant to O.C.G.A. § 17-3-1(d), since the accusation was filed within the time period which was deemed the commencement of the matter pursuant to O.C.G.A. § 16-1-3(14); the fact that the supporting affidavit was filed six days after the limitations period ran did not affect the timeliness of the action, pursuant to O.C.G.A. § 17-7-71(a), because that document was for the issuance of an arrest warrant. Cochran v. State, 259 Ga. App. 130, 575 S.E.2d 901 (2003).

Return of indictment.

- In Georgia, a limitation period expires when a suspect is indicted or, more precisely, when the indictment is "returned." Dean v. State, 252 Ga. App. 204, 555 S.E.2d 868 (2001).

A trial court did not err in denying a defendant's motion to quash the indictment charging trafficking of cocaine since another county had not yet commenced its prosecution with the return of an indictment; therefore, the county charging defendant was authorized to exercise its jurisdiction by indicting defendant for trafficking in cocaine. Lawrence v. State, 289 Ga. App. 698, 658 S.E.2d 144 (2008), cert. denied, No. S08C1086, No. S08C1084, 2008 Ga. LEXIS 467, 486, 512 (Ga. 2008).

Return of second indictment.

- Trial court did not err in finding that the state had the ability to bring the second indictment against the defendant because the first appeal filed concerned the issue of whether the first indictment was read in open court as required under Georgia law whereas the second indictment initiated a completely separate prosecution on the same charges and no contention was raised that the second indictment suffered from the same infirmity as the first indictment. Brown v. State, 322 Ga. App. 446, 745 S.E.2d 699 (2013).

Indictment charging involuntary manslaughter by simple battery sufficient.

- Indictment charging the defendant with involuntary manslaughter by the commission of the unlawful act of simple battery in violation of O.C.G.A. §§ 16-5-3(a) and16-5-23(a) was not void because the factual allegations in the indictment sufficiently described the offense of involuntary manslaughter in the commission of the unlawful act of simple battery. Morris v. State, 310 Ga. App. 126, 712 S.E.2d 130 (2011).

Prosecution for misdemeanor.

- The trial court did not err in refusing to dismiss uniform traffic citations issued within two years of the date the offenses occurred, but later amended by the state, on the ground that the statute of limitation expired; the amended accusations did not constitute the commencement of a new prosecution and there had been no final disposition of the previously filed accusations. Prindle v. State, 240 Ga. App. 461, 523 S.E.2d 44 (1999).

Coroners are not "peace officers" under paragraph (11).

- Under former Code 1933, § 26-401 (see O.C.G.A. § 17-4-20), a peace officer may arrest a sheriff with or without a warrant; however coroners, as provided in Ch. 16, T. 45, do not fall within aegis of "peace officers" under former Code 1933, § 26-401 (see O.C.G.A. § 16-1-3(11)) and consequently cannot arrest a sheriff in circumstances where a peace officer may be able to, but a private citizen would not. 1973 Op. Att'y Gen. No. 73-93.

Military police distinguished from "peace officers."

- Military police, unlike peace officers, are not vested by law with a duty to maintain "public" order. Instead, military police are confined to law and order operations within the military reservation. 1991 Op. Att'y Gen. No. 91-3.

Off-duty military police may not be employed by a chief of police as part-time city police officers. 1991 Op. Att'y Gen. No. 91-3.

Am. Jur. 2d.

- 21 Am. Jur. 2d, Criminal Law, § 119. 29 Am. Jur. 2d, Evidence, § 195. 30 Am Jur. 2d, Evidence § 1048. 75 Am. Jur. 2d, Trial, §§ 312, 331.

Defending Minor Felony Cases, 13 Am. Jur. Trials 465.

C.J.S.

- 22 C.J.S., Criminal Law, §§ 53, 54. 22A C.J.S., Criminal Law, §§ 947, 949.

ALR.

- Validity of statute or ordinance prohibiting or regulating holding of meeting in street, 25 A.L.R. 114.

"Property" as including business or profession, 34 A.L.R. 716.

Character of offense as a felony as affected by discretion of court or jury as regards punishment, 95 A.L.R. 1115.

What amounts to conviction or satisfies requirement as to showing of conviction, within statute making conviction a ground for refusing to grant or for canceling license or special privilege, 113 A.L.R. 1179.

When criminal prosecution deemed pending within saving clause of statute, or principle which prevents application of statute to pending prosecution, 122 A.L.R. 670.

What constitutes former "conviction" within statute enhancing penalty for second or subsequent offense, 5 A.L.R.2d 1080.

Larceny: entrapment or consent, 10 A.L.R.3d 1121.

Burden of proof of defendant's age, in prosecution where attainment of particular age is statutory requisite of guilt, 49 A.L.R.3d 526.

Homicide: burden of proof on defense that killing was accidental, 63 A.L.R.3d 936.

What constitutes "public place" within meaning of statutes prohibiting commission of sexual act in public place, 96 A.L.R.3d 692.

Right of party litigant to defend or counterclaim on ground that opposing party or his attorney is engaged in unauthorized practice of law, 7 A.L.R.4th 1146.

Who "harbors" or "keeps" dog under animal liability statute, 64 A.L.R.4th 963.

What constitutes "public place" within meaning of state statute or local ordinance prohibiting indecency or commission of sexual act in public place, 95 A.L.R.5th 229.