Danuel v. State

¶1concurring specially.

¶2For three reasons, I disagree with the majority’s conclusion that the “abscond from this State” language of former Ga. Code Ann. § 27-601 survived the enactment of the 1968 Criminal Code of Georgia (Ga. Code Ann. Title 26; Ga. L. 1968, p. 1249) (hereinafter, the 1968 Code). First, the majority overlooks substantial evidence that the Criminal Law Study Committee for the 1968 Code (hereinafter, the Committee) intended to do away with the “abscond from this State” test of former Code Ann. § 27-601 (hereinafter, § 27-601), which cast upon the State the burden of proving that the defendant had intended to avoid prosecution, and in its place intended to substitute the “not usually and publicly a resident” language of former Code Ann. § 26-503 (a) (now OCGA § 17-3-2 (1) (hereinafter, § 26-503 (a)), with the specific goal of removing from the prosecution any burden to show intent by the defendant to avoid prosecution. Second, the majority opinion does not take into account opinions from other states that address the meaning of language essentially similar to “not usu*354ally and publicly a resident.” Third, the majority opinion fails to recognize that § 27-601 was impliedly repealed when the 1968 Code was enacted. However, because I agree with the result reached by the majority opinion, which is that the statute of limitation was not tolled, I concur in the judgment.

¶31. The majority opinion overlooks portions of the Committee’s foreword to the 1968 Code that manifest the Committee’s intent to effect a change in the law by substituting the “not usually and publicly a resident” language for the “abscond” language.

¶4(a) In its foreword,6 the Committee stated that one of the “principal sources” for its work was the Model Penal Code.7 Review of both the Tentative Draft of the Model Penal Code and its final version shows that the drafters distinguished between the standards of intent to avoid prosecution and mere absence from the state, and ultimately chose the latter standard.

¶5The Model Penal Code was completed in 1962. The Tentative Draft had language that was equivalent to the language of § 27-601, in that it required “a purpose to avoid detection, apprehension or prosecution.”8 Model Penal Code, Tentative Draft No. 5, § 1.07 (6) (a), p. 15,9 and Comment, pp. 26-27 (ALI 1956). The final version of the Model Penal Code rejected that approach, instead adopting a “con*355tinuously absent from the state” standard. Model Penal Code and Commentaries, § 1.06 (6) (a), p. 85 (ALI 1985).10 The comment to § 1.06 shows that, for policy reasons, the drafters of the Model Penal Code felt that the broader approach of the final version, which eliminated the necessity for showing any intent to avoid prosecution, was the superior approach.11 Id. comment, p. 98. The standard finally adopted by the Model Penal Code is the functional equivalent of § 26-503 (a), which likewise has no intent element.

¶6Because it expressly relied upon the Model Penal Code as a source, the Committee was aware of the distinction that the Code drew between the intent and the mere absence standards, and was also aware of the Code’s choice of the latter approach as expressing the better view. It is difficult to avoid the inference that the Committee, in drafting § 26-503 (a) to have no element of intent, intended to follow the reasoning and choice behind the final version of the Model Penal Code.

¶7(b) Another of the “principal sources” for the Committee’s work “was the weight of the authority in other states,” and in that regard the Illinois Criminal Code of 1961 was of special interest to the Committee. In its foreword to the 1968 Code, the Committee noted that

[w]hen the Criminal Law Study Committee had completed its organization, Illinois had completed its new substantive Criminal Code which was enacted into law in August, 1961. It took Illinois six years to do the work. Professor Charles H. Bowman, of the University of Illinois School of Law, Chairman of the Illinois Drafting Subcommittee, gave the Criminal Law Study Committee helpful information on the mechanics of writing the Illinois Criminal Code, and special *356appreciation is due to Professor Bowman for his advice and continuing interest.

...

[One of the principal sources for the Committee’s work] was the weight of authority in other states such as . . . Illinois, . . . which have gone through similar experiences in recent years and have graciously supplied this committee with the material used in their work. [Ga. Code Ann., Book 10, pp. 2, 3 (Harrison 1988) (emphasis supplied).]

¶8Section 3-7 of the Illinois Criminal Code contains a tolling provision encompassing “not usually and publicly resident” language that is almost identical to that of § 26-503 (a).12 As the comments to § 3-7 show, Illinois courts interpreted the “not usually and publicly resident” language of § 3-7 as requiring no element of concealment.13The comments to § 3-7 were drafted by Charles Bowman, who presumably was the “Professor Charles H. Bowman” who was the chairman of the Illinois Drafting Subcommittee and who advised the (Georgia) Committee. His written comments to the 1961 Illinois Code therefore merit special attention as a guide to ascertaining the Committee’s intent.

¶9In light of the Committee’s contacts with Prof. Bowman and the Committee’s express reliance upon his advice and upon Illinois law as a principal source, Section 3-7 and Prof. Bowman’s comments to it *357certainly were known to the Committee when it drafted § 26-503 (a). Moreover, the Committee adopted a tolling standard that was couched essentially word-for-word in the language of § 3-7. The compelling inference from these facts is that the Committee meant § 26-503 (a) to have the same meaning as the Illinois statute.14

¶102. The majority opinion does not take into account opinions from other states that address the meaning of provisions like § 26-503 (á). The case of State v. Ansell, 675 P2d 614 (Wash. App. 1984), illustrates the view of most jurisdictions in this respect. In Ansellthe Washington Court of Appeals construed a statute of the State of Washington that had “not usually and publicly resident” language. The court surveyed the laws of other states; found that the majority view concerning such language was that it should be read as not requiring any intent element; and adopted the majority rule. Ansell, supra,675 P2d at 616-617. By construing § 26-503 (a) as expressing nothing more than the “abscond” standard of § 27-601, the opinion of this Court delivers a holding that is inconsistent with Ansell.

¶113. The majority opinion fails to recognize that § 27-601 was impliedly repealed when the 1968 Code took effect. I reach this conclusion notwithstanding the majority opinion’s reliance upon two sources as evidence that § 27-601 survived the 1968 Code. One of those sources is the Committee’s observation that former Ga. Code Ann. §§ 26-502; 26-503; and 26-504 “substantially restate[d] the former Ga. Code Ann. provisions on limitations.” Ga. Code Ann., Book 10, Committee Notes Ch. 26-5, p. 78 (Harrison 1988). The other source is State v. Shepherd Constr. Co., 248 Ga. 1, 4 (II) (a) (281 SE2d 151) (1981). However, the majority’s reliance on the Committee’s use of the term “substantially restate[d]” and on Shepherd Constr. is misplaced.

¶12(a) The key to understanding the Committee’s use of the term “substantially restate [d]” is to note that the Committee did not say that §§ 26-502; 26-503; and 26-504 identically track the provisions of former Ga. Code Ann. § 27-601. Instead, the Committee said only that those Code sections “substantially” track former Ga. Code Ann. § 27-601. In fact, those sections do sometimes vary from § 27-601, and where they vary we are authorized to determine whether the variance signifies a change in the law. Viewed in this light, the reference to “substantially” does not support the majority’s position that the Committee intended for the “abscond” approach to remain the law in Georgia. Moreover, in its foreword to the 1968 Code the Committee itself implied that it had changed the substance of some laws:

*358It was a fundamental rule of the committee to retain as many laws as possible, with the interpretations of the courts carefully considered. The form and arrangement might be changed to meet modern conditions, the words may be changed for the sake of uniformity, but the substance was retained wherever possible. [Ga. Code Ann. Book 10, p. 3. (emphasis supplied).]

¶13The tolling provision of § 26-503 (a) is, I think, an instance where the Committee found it not possible to retain the substance of § 27-601.

¶14(b) The majority correctly notes that in Shepherd Constr. this Court did state that §§ 26-502; 26-503; and 26-504 “track the provisions” of former § 27-601. However, the majority has omitted to note that Shepherd Constr. itself concerns a difference between § 26-503 (b) and § 27-601. That difference led us to hold that § 26-503 (b) had impliedly repealed the corresponding provision of former Code Ann. § 27-601. Shepherd Constr., supra,248 Ga. at 4. Accord Kyles v. State, 254 Ga. 49, 50-51 (326 SE2d 216) (1985) (holding that § 26-504 impliedly repealed part of § 27-601 (4)).

¶15When a prior statute conflicts with a more recently enacted law, the later statute acts as an implied repealer of the prior law.15 Id. Because § 26-503 (a) did not identically track the language of former Ga. Code Ann. § 27-601, and in fact conflicts with it, I would hold that the enactment of § 26-503 (a) repealed the corresponding provision of former Ga. Code Ann. § 27-601.

¶164. In summary, the opinion of the majority of this Court does not take into account the reliance of the Committee upon the Model Penal Code and the 1961 Criminal Code of Illinois. Both sources distinguish between the two different approaches, intent versus mere absence, and choose the latter. Due to its familiarity with those sources, the Committee likewise was aware of the distinction between the approaches, and chose to supplant the intent approach with the mere absence approach. The majority opinion also fails to address case law from other states, the majority of which have held that language essentially the same as “not usually and publicly a resident” denotes mere absence. Finally, the majority opinion misconstrues Shepherd Constr., supra, 248 Ga. The proper interpretation of that case is that, even though the 1968 Code substantially tracked § 27-601, any change in the 1968 Code might operate to impliedly repeal portions of § 27-601. In the instant case, the adoption of the “not usually and publicly a resident” test in § 26-503 (a) operated to repeal the “abscond” stan*359dard of § 27-601. For these reasons, it is my belief that the majority is incorrect in holding that the “abscond” standard survived the effective date of the 1968 Code.

¶175. In the event my view of § 26-503 (a) were to prevail, it would not require finding that the tolling provision was in effect once appellant moved to Tennessee. Instead, a reasonable interpretation of § 26-503 (a) would be that, notwithstanding appellant’s change of legal residence, his regular and frequent presence in Georgia rendered him available for easy detection and apprehension, and thereby rendered § 26-503 (a) inapplicable.