concurring specially.
1. While giving full recognition to the law regarding judicial notice of the rules promulgated by the State Board of Pharmacy, I do not believe that this court can take judicial notice that the phencyclidine referred to in the indictment is phencyclidine hydrochloride.
The evidence offered on the trial would not serve to breathe life into or validate a void indictment. As held in Daniel v. State, 63 Ga. App. 12 (1) (10 SE2d 80): "An indictment may be quashed on oral motion for any defect for which the judgment on it should be arrested. However, a motion to quash does not question the competency or sufficiency of the evidence which induced the judgment... The motion deals solely with the record, and the verdict and the evidence can not be considered on such a motion.”
Count 1 of the indictment accusing the defendant of the sale of phencyclidine charges no crime and was thus subject to the motion to quash the indictment.
However, I am bound to follow the recent decision of this court in Ellis v. State, 132 Ga. App. 684 (209 SE2d 106) and thus concur for that reason only.
2. With regard to Division 4 of the main opinion, Code Ann. § 27-2510 (Ga. L. 1956, pp. 161, 168; 1964, p. 494) provides, as to either felony or misdemeanor sentences, that unless specified two or more sentences shall be served concurrently. Code Ann. § 27-2534 (Ga. L. 1970, pp. 949, 950 (now repealed by Gq. L. 1974, p. 352, but in effect for this case)) provided that the jury consider the matter of punishment and sentence for felonies. The rationale of the Georgia Supreme Court in Wade v. State, 231 Ga. 131, 134 (200 SE2d 271), construing Code Ann. §§ 27-2502,27-2534 and 27-2510, was that since the jury was solely empowered to set sentences in felonies unless the *539jury provided for consecutive sentences the trial judge could not. Accord: Mathis v. State, 231 Ga. 401, 404 (4) (202 SE2d 73); Gandy v. State, 232 Ga. 105, 106 (205 SE2d 243).
However, the trial judge determines misdemeanor punishment. Code Ann. § 27-2506 (Ga. L. 1956, pp. 161, 168; 1957, pp. 477, 482; 1964, p. 485; 1970, pp. 236, 241; 1972, p. 600); Lawson v. State, 52 Ga. App. 181, 182 (2) (182 SE 820). Hence, he decides whether a misdemeanor sentence is to be consecutive or concurrent with a prior sentence. The basis for the Supreme Court rule in Wade v. State, 231 Ga. 131, supra, is not here present. The jury did not (and properly so) consider the matter of misdemeanor punishment. The trial judge could and did impose a consecutive sentence.
In short, the language of Code Ann. § 27-2510 (c) "this section shall apply alike to felony and misdemeanor offenses” refers to the necessity for expressly providing for consecutive sentences under that Code section. It does not encompass the entire rule enunciated by the Supreme Court in Wade v. State, 231 Ga. 131, supra, which is also predicated on Code Ann. § 27-2534.