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Drug violation. Cobb Superior Court. Before Judge Ravan.
The defendant was indicted, tried and convicted of the offense of possessing and controlling a narcotic drug (marijuana). His motion for new trial was overruled and appeal was taken to this court. Held:
2. It is urged that the trial judge's charges on punishment were incorrect and misleading. There is no merit in this contention.
The trial judge first charged the jury in the language of the stat ute (Code Ann. 79A-9911; Ga. L. 1967, pp. 296, 375) that one in violation of Code Chapter 79A-8 "shall, upon conviction, be punished by a fine of not more than $2,000 and by imprisonment in the penitentiary for not less than two nor more than five years." He then charged that under U. S. Supreme Court rulings if the jury decided to give the maximum sentence (five years) they could not impose the fine.
It is apparent that the defendant did not receive the maximum sentence and therefore was not harmed by any alleged error in the charge. Moreover, the charge was, if anything, favorable to the defendant and hence was not error. McCall v. State, 87 Ga. App. 185 (4) (73 SE2d 245); Powell v. State, 115 Ga. App. 791 (156 SE2d 188).
3. It is contended that the court erred in charging with regard to Code Ann. 79A-811 (2) and 79A-812 (Ga. L. 1967, pp. 296, 336, 337) in that the charge referred to "pharmacy" or "drug dispensary" rather than "apothecary" as is provided in the Code sections. In view of the definition of "apothecary" contained in Code Ann. 79A-802 (7) (Ga. L. 1967, pp. 296, 326) the language used by the trial court is at least substantially equivalent to the statutory language. Moreover, even if the language be considered as inexact, the defendant was not harmed by the charge in question. "If a judge uses languages in his charge that might be erroneous, it is not ground for a new trial if such error is harmless." Williams v. State, 180 Ga. 595 (3) (180 SE 101). See Fry v. State, 81 Ga. 645 (8 SE 308); Siegel v. State, 206 Ga. 252 (2) (56 SE2d 512).
4. Enumerations of error with regard to the sufficiency of the evidence to sustain the verdict are without merit.
William Holly, for appellant.
Friday May 22 16:09 EDT

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