O.C.G.A. § 16-10-1 (2019)

Annotations

Cross references. - Official oaths generally, § 45-3-1 et seq. Law reviews. - For article discussing statute preceding present criminal Code

section restricting municipal purchasing from city officials, see 5 Ga. St. B.J. 309 (1969).

JUDICIAL DECISIONS Not unconstitutionally vague. - O.C.G.A. § 16-10-1 was not unconstitutionally vague as applied to a police officer who pawned a confiscated handgun to finance the officer’s personal water bill, since such conduct was so far outside the realm of acceptable police behavior that defendant had adequate notice of the potential for prosecution for that conduct. Poole v. State, 262 Ga. 718, 425 S.E.2d 655 (1993). What public officers included. - Former Code 1933, § 26-2302 (see now O.C.G.A. § 16-10-1) plainly applies to any public officer, and includes public officers of a municipality. Beckman v. State, 229 Ga. 327, 190 S.E.2d 906 (1972). Misdemeanor committed by public officer. - Police officer’s act of taking a candy bar from a convenience store without paying for it was not the offense of violation of oath by a public officer. State v. Tullis, 213 Ga. App. 581, 445 S.E.2d 282 (1994). Proving terms of oath of office. - Violation of O.C.G.A. § 16-10-1 was not established where the state failed to prove the terms of the oath of office administered to defendant were as averred in the charge. Jowers v. State, 225 Ga. App. 809, 484 S.E.2d 803 (1997). It is not necessary that the conduct prohibited by O.C.G.A. § 16-10-1 take place while the officer is on duty. Barnes v. State, 230 Ga. App. 884, 497 S.E.2d 594 (1998). Lesser included offense of bribery. - The offense of violation of oath by a public officer is a lesser included offense of bribery. Nave v. State, 171 Ga. App. 165, 318 S.E.2d 753 (1984).

Proof of the alleged bribery of an assistant district attorney as a factual matter would include the facts necessary to establish a violation of oath, and thus the latter is embraced within the charge of bribery and constitutes a lesser included offense of that crime. Nave v. Helms, 845 F.2d 963 (11th Cir. 1988). Indictment of county clerk for violating the clerk’s oath as a public officer for failure to collect costs, fines, and forfeitures was sufficient to withstand defendant’s special demurrer where all of the elements of the offense of ‘‘violation of oath by public officer’’ were included in the indictment, and there was a clear exposition of the facts alleged as the basis for the charge set forth in the body of the indictment in such a plain manner as to be easily understood by the jury and the defendant. State v. Greene, 171 Ga. App. 329, 320 S.E.2d 183 (1984). County jailer. - Motion for general demurrer by defendant, a county jailer, was properly denied on defendant’s indictment on a charge of violating defendant’s oath of office for receiving marijuana as payment for delivering a pack of cigarettes to an inmate because it could not be said that defendant had ‘‘well and truly’’ performed defendant’s duties. Murkerson v. State, 264 Ga. App. 701, 592 S.E.2d 184 (2003). Prison guard. - There was sufficient evidence to support the conviction of the defendant, a corrections officer, of violating the defendant’s oath of office when the defendant was found bringing drugs into the prison where the defendant was employed. The terms of the oath the defen-

dant signed were set out in an exhibit exactly as averred in the indictment, and the oath was prescribed by law. Bradley v. State, 292 Ga. App. 737, 665 S.E.2d 428 (2008). Evidence that a corrections officer threatened an inmate that if the inmate did not give the officer $2,000, the officer would have the inmate charged with marijuana possession was insufficient for a jury to find that the officer attempted to improperly influence official action by another officer in violation of O.C.G.A. § 16-10-5, but was sufficient to support the officer’s conviction of violation of an oath by a public officer in violation of O.C.G.A. § 16-10-1. Beard v. State, 300 Ga. App. 146, 684 S.E.2d 306 (2009). Coerced statement. - In a prosecution under both O.C.G.A. §§ 16-6-5.1 and 16-10-1, the trial court properly suppressed the oral and written statements made by the defendant, a public employee, during an internal investigation interview conducted by the Georgia Department of Corrections, and after the defendant was forbidden to seek the advice of counsel, as the defendant had an objective belief that a failure to cooperate with the investigation by taking part in the interview and signing a written document entitled ‘‘Notice of Interfering with On-Going Internal Investigation’’ would result in a loss of employment; thus, the defendant’s right against self-incrimination was violated. State v. Aiken, 281 Ga. App. 415, 636 S.E.2d 156 (2006). Failure to charge jury on issue of character of defendant was reversible error, where defendant’s character was an issue in the trial of the case. Chastain v. State, 177 Ga. App. 236, 339 S.E.2d 298 (1985). Notice of charges. - Defendant’s special demurrer was properly denied because the indictment accusing the defen-

dant of ‘‘threatening to arrest (the victim) if she did not meet with him at a separate location and comply with his demands for sex, by lying to officials with the Georgia Bureau of Investigation during a criminal investigation, and by committing crimes against the State while on duty,’’ sufficiently apprised defendant of the charge. Wiggins v. State, 272 Ga. App. 414, 612 S.E.2d 598 (2005), aff ’d in part and rev’d in part, 280 Ga. 268, 626 S.E.2d 118 (2006). Evidence sufficient for conviction. - Trial court properly denied defendant’s demurrer to two counts alleging violation of defendant’s oath of office (as a police officer) as defendant made various admissions in judicio and there was a sufficient connection between defendant’s taking possession of the weapons from an impounded car and defendant’s duties as a police officer to support one charge for violating the oath of office. Further, the indictment sufficiently alleged that defendant failed to turn over the contraband taken, which indicated that defendant wilfully and intentionally violated the oath to faithfully administer and discharge the duties of defendant’s office by intentionally failing to turn in the weapons to authorities. Brandeburg v. State, 292 Ga. App. 191, 663 S.E.2d 844 (2008), cert. denied, No. S08C1796, 2008 Ga. LEXIS 921 (Ga. 2008). Evidence supported the defendant’s conviction for violation of oath of office as the jury was authorized to find that the defendant, a police officer, obtained the victim’s taxpayer identification number without authorization by using the police database with personal information in the database. Gaskins v. State, 318 Ga. App. 8, 733 S.E.2d 338 (2012). Cited in In re Nave, 254 Ga. 107, 326 S.E.2d 769 (1985); Tesler v. State, 295 Ga. App. 569, 672 S.E.2d 522 (2009).

RESEARCH REFERENCES Am. Jur. 2d. - 63C Am. Jur. 2d, Public Officers and Employees, § 369 et seq. C.J.S. - 67 C.J.S., Officers and Public Employees, § 360 et seq. ALR. - Criminal offense of bribery as

affected by lack of legal qualification of person assuming or alleged to be an officer, 115 A.L.R. 1263. Personal liability of policeman, sheriff, or similar peace officer or his bond, for

injury suffered as a result of failure to enforce law or arrest lawbreaker, 41 A.L.R.3d 700.