Gunn v. Balkcom , 228 Ga. 802 ( 1972 )

228 Ga. 802 (1972) 188 S.E.2d 500

GUNN
v.
BALKCOM.

27031.

Supreme Court of Georgia.

Submitted February 14, 1972. Decided March 9, 1972.

V. D. Stockton, for appellant.

Herbert B. Kimzey, District Attorney, Arthur K. Bolton, Attorney General, Harold N. Hill, Jr., Executive Assistant Attorney General, Courtney Wilder Stanton, W. Hensell Harris, Jr., William F. Bartee, Jr., Assistant Attorneys General, for appellee.

MOBLEY, Presiding Justice.

Calvin Gunn filed a petition for habeas corpus contending that the life sentence he is serving for the crime of foeticide, for acts committed on November 22, 1969, is illegal because the crime had been abolished prior to the date of the alleged crime. The habeas corpus court found against his contention, and the appeal is from that judgment.

The Code of 1933, § 26-1103, defined the crime of foeticide. The New Criminal Code (Ga. L. 1968, pp. 1249-1351) repealed Chapter 26-11 of the 1933 Code (Ga. L. 1968, p. 1338), and did not redefine the crime. This Act was approved April 10, 1968, and provided that it would become effective July 1, 1969.

At the same session of the General Assembly at which the New Criminal Code was passed, an Act was passed (Ga. L. 1968, pp. 1432-1436) striking Code Chapter 26-11, relating to the crimes of abortion, foeticide, and infanticide, and a new Chapter 26-11 was enacted, in which foeticide was redefined in the identical language of the former law, the new section being designated as Code § 26-1102. This Act plainly was intended as an amendment of Title 26 of the Code of 1933. It was not approved by the Governor, but became effective by operation of law on April 12, 1968. Constitution, Art. V, Sec. I, Par. XV (Code Ann. § 2-3015). This Act must be considered as being a later expression of the legislative intent than the New Criminal Code approved April 10, 1968. County of Butts v. Strahan, 151 Ga. 417 (1) (107 S.E. 163).

In passing the Act of 1968 which amended the 1933 Code by inserting a new Chapter 26-11 (Ga. L. 1968, pp. 1432-1436), the General Assembly must be presumed to have known that Title 26 of the 1933 Code would be superseded by the new Criminal Code on July 1, 1969, its effective date, and that on that date Title 26 of the 1933 Code would no longer be a statute with force and vitality. Lampkin v. Pike, 115 Ga. 827 (42 S.E. 213, 90 ASR 153). Therefore on July 1, 1969, the 1968 enactment redefining the crime of foeticide was an amendment of an inoperative criminal code, and it also became inoperative.

The 1969 session of the General Assembly passed an amendment to the New Criminal Code (Ga. L. 1969, pp. 857-868). This Act was approved April 28, 1969, and became effective July 1, 1969, since no other effective date is stated. Code Ann. § 102-111 (Ga. L. 1968, pp. 1364-1365). This amendment struck the first section, which provided: "The following shall constitute the Criminal Code of Georgia." The following was inserted in lieu thereof: "The Code of Georgia of 1933 is hereby amended by striking Title 26, relating to crimes and punishment, in its entirety and inserting in lieu thereof a new Title 26, to read as follows."

This is the latest expression of the legislative intent and shows an intention to repeal Title 26 of the 1933 Code, including the new Chapter 26-11 passed at the 1968 session (Ga. L. 1968, pp. 1432-1436), which became a part of Title 26.

There was thus no valid law defining the crime of foeticide at the time the appellant committed the acts for which he was convicted of the crime of foeticide. There are no crimes except those defined by law. Code Ann. § 26-201 (Ga. L. 1968, pp. 1249, 1261). The appellant is being held under an illegal sentence and must be discharged.

Judgment reversed. All the Justices concur.