Tant v. State

¶1dissenting. This case graphically illustrates the malfunction of our present system of two separate appellate courts having jurisdiction of criminal cases. The result has been confusing jurisdictional problems (which is the proper appellate court?), conflicting appellate court decisions and delay in and by the two courts.

¶2As pointed out in Judge Deen’s dissent, the Supreme Court in its opinion in Graham v. State, 150 Ga. 411, 412 (104 SE 248) stated that "the act of taking whiskey [marijuana] from the hand of another” for the purpose of drinking (smoking) the whiskey (marijuana) "is merely incident to the act of drinking [smoking] the whiskey [marijuana], and can in no proper sense be held to be *764within the inhibition of a criminal statute which declares that it shall be unlawful” to control or possess whiskey or marijuana.

¶3In Pierce v. State, 43 Ga. App. 435 (159 SE 125), and Dukes v. State, 90 Ga. App. 50 (81 SE2d 864), this court refused to follow the above quoted reasoning found in the Supreme Court’s Grahamopinion. In Mikell v. State, 94 Ga. App. 627 (95 SE2d 691), this court refused to follow its opinions in Pierceand Dukesand adopted the reasoning in the Grahamdecision. Now a majority of this court goes back to the Pierceand Dukesopinions.

¶4In theory, the defendant might still have some form of relief in seeking certiorari in our Supreme Court. In practice, he has no remedy because he has already served over half of his two-year sentence (in jail without bond) and will probably serve it all before a final decision.1 The history of this appeal is as follows: He was convicted on February 16, 1970, and sentenced on April 15, 1970. Notice of appeal to the Supreme Court from the judgment of conviction was filed on May 15, 1970. On October 8, 1970, the Supreme Court transferred the appeal to this court on the basis that this court rather than the Supreme court had jurisdiction (Justice Felton dissenting). Tant v. State, 226 Ga. 761 (177 SE2d 484). Six months later we affirm the judgment.

¶5This case involves possible conflicts between decisions of our two appellate courts on the question of substantive criminal law. On conflicts as to criminal procedure and the ramifications of these conflicts see Parham v. State, 120 Ga. App. 723 (171 SE2d 911); Thornton v. State, 226 Ga. 837 (178 SE2d 193); Pritchard v. State, 122 Ga. App. 780 (178 SE2d 808); and Merneigh v. State, 123 Ga. App. 485.

¶6All of this raises the question of whether the time has come for *765us to re-examine our appellate structure and jurisdiction. Should we have only one appellate court with separate divisions (civil and criminal) similar to the English Court of Appeal? An early English jurist said that the creation of one court of appeal may be considered a reasonable precaution but that two suggests panic. Even laying aside the additional delay inherent in two appellate courts, "The folk wisdom that two heads are better than one has always been tempered by the observation that too many cooks spoil the broth.” Lilly and Scalia, "Appellate Justice: A Crisis in Virginia,” 57 Virginia Law Rev. 3, 27 (1971). See also "The Case For a Two-Level State Court System,” 50 Jud. 185 (Feb. 1967). Should we have a separate court of last resort for criminal appeals as in Texas and Oklahoma? Texas Constitution, Art. 5, §§ 1, 5; Oklahoma Constitution, Art. 7, §4. Or should all criminal appeals go directly to our highest court as is true in Louisiana? Louisiana Constitution, Art. 7, § 11. Any of these proposals would aid in meeting the problems of delay, uncertain jurisdiction and conflicting decisions inherent in allowing appellate review in two separate courts.