text:
    75160.
    MOORE v. THE STATE.
    (362 SE2d 76)
   Deen, Presiding Judge.

The appellant, Warneater Moore, along with a co-defendant Rufus Sapp, were each indicted for the offenses of possession of a controlled substance with the intent to distribute and possession of less than one ounce of marijuana. The appellant was tried separately and found guilty by a jury on both counts. She brings this appeal following the denial of her motion for a new trial.

1. In her first enumeration of error, Moore contends that a mistrial should have been granted on the grounds that one juror tainted the jury panel in the deliberation process.

Juror Brisbane had deliberated in the jury room with the panel for approximately two hours after the case was sent to the jury. She came back the next morning and deliberated for an additional two hours before disclosing to the court that during the course of the trial she recognized the co-defendant Sapp, and that her strong feelings against him made it impossible for her to impartially consider the appellant’s case. This was communicated to the judge in a note: “I’m one of the jurors who know Bousie Sapp with hate in my heart because of personal reasons. I know what kind of guy this is. I know Mr. Sapp is not on trial but my personal feelings will not let me vote fair. I didn’t know him by Rufus Sapp but when I found out it was Bousie Sapp I told the deputy when it was 13 people but it nothing he could do.”

The court did not question juror Brisbane nor the panel after receipt of this note. It is unknown if this juror biased the panel by conveying any of her ill feelings to them. Therefore, a danger exists as to whether juror Brisbane served as an unsworn witness as to the defendant’s character and, thus, prejudicing the panel. “There is a presumption of prejudice to the defendant when an irregularity in the conduct of a juror is shown, and the burden is on the prosecution to prove beyond a reasonable doubt that no harm has occurred.” Lamons v. State, 255 Ga. 511, 512 (340 SE2d 183) (1986); Martin v. State, 242 Ga. 699 (251 SE2d 240) (1978); Millsaps v. State, 180 Ga. App. 509 (351 SE2d 81) (1986). The trial court erred in not investigating and, therefore, in failing to prove that no harm resulted from juror Brisbane’s presence during four (of the seven) hours of deliberation.

2. As this case must be remanded for retrial, it is not necessary to consider appellant’s remaining enumeration of error. Any allegation of error pertaining to the use of the alternate juror will not recur upon retrial of the case.

Decided September 28, 1987

Rehearing denied October 15, 1987

William F. Braziel, Jr., for appellant.

Spencer Lawton, Jr., District Attorney, John E. Morse, Jr., Assistant District Attorney, for appellee.

Judgment reversed.

Birdsong, C. J., and Pope, J., concur.


source: Caselaw Access Project

author: Deen, Presiding Judge.

license: Public Domain

text:
    75396.
    MULLIS v. THE STATE.
    (362 SE2d 90)
   Deen, Presiding Judge.

Larry Wayne Mullís appeals from his conviction of child molestation following the denial of his motion for a new trial.

1. Mullís contends that the trial court erred in allowing the parents of the eleven-year-old victim to remain in the courtroom during her testimony after the rule of sequestration had been invoked.

The transcript indicates that the district attorney informed the court that the victim had requested that her parents be present while she testified. He further stated that he had them under subpoena, but did not intend to call them at any point in his case-in-chief. Defense counsel stated that he also had them under subpoena. The court held that it was exercising its discretion and would permit them to remain in the courtroom for that limited purpose.

An examination of the transcript shows that the state did not call them as witnesses and that the defense called both of them. The mother was examined by the defense only as to a conversation that she had with her mother-in-law, the defendant’s mother, which had no bearing upon her daughter’s testimony. On cross-examination by the state she responded in the negative when she was asked if her daughter had told her anything different from what she told the police officers. She was also questioned about family problems that had arisen since her daughter claimed that her uncle had molested her. On redirect, the mother admitted that she was present when the child admitted to her father that she had lied about part of it. This aspect of her testimony was further developed on cross-examination.

The victim’s father also appeared as a defense witness and counsel questioned him extensively about interviewing the victim in his presence and asked him to verify his daughter’s statements which he either confirmed or stated that he could not remember. On cross-examination, he was asked if the victim had changed her story when she talked to the district attorney’s office and defense counsel. He testified that she had not. The testimony of the parents did not bolster the victim’s trial testimony.

Under OCGA § 24-9-61, either party has the right to have the witnesses sequestered. Certain exceptions to this rule, such as the necessity of having the witness present in the courtroom for the orderly presentation of the case, are permitted within the sound discretion of the trial judge. Blalock v. State, 250 Ga. 441 (298 SE2d 447) (1983); Ryles v. State, 177 Ga. App. 537 (339 SE2d 792) (1986). In criminal cases, violation of the rule of sequestration by any witness for either side goes only to the credibility of the witness rather than admissibility of the witness’ testimony. Blanchard v. State, 247 Ga. 415 (276 SE2d 593) (1981); Creech v. State, 171 Ga. App. 217 (319 SE2d 76) (1984). See also Jordan v. State, 247 Ga. 328, 347 (276 SE2d 224) (1981). “Violation of the sequestration rule did not affect admissibility of the testimony. [Counsel’s] recourse was to seek instructions from the court informing the jury that the presence of the witness in the courtroom in violation of the rule should be considered in determining the weight and credit to be given to the testimony of the witness. [Cits.]” Wright v. State, 246 Ga. 53 (268 SE2d 645) (1980). As no such instructions were sought in the instant case, and the witnesses who appeared on behalf of the defense did not bolster the victim’s testimony, this enumeration is without merit.

2. Appellant next asserts as error the trial court’s refusal to permit his attorney to testify on his behalf and subsequently agreeing to allow his attorney to testify on the condition that he first place all his other witnesses on the stand. The transcript shows that Mr. Ramsey, the attorney, did not testify.

OCGA § 24-9-25 does not permit an attorney to be compelled to testify for or against his client as to any matter of which he may have acquired knowledge by virtue of his employment as the party’s attorney or prospective attorney. He or she is, however, competent and compellable to testify for or against the client as to information that may have been acquired in another manner.

The transcript shows that the court was concerned with the ethical considerations found in the State Bar Rules which are presented when an attorney testifies on behalf of his client and conducts the trial. See DR 5-102, EC 5-9. The court, however, stated that if he was dissatisfied with the victim’s testimony and wanted to impeach her testimony or that of her father, it would be permitted. Counsel acquiesced by stating, “Knowing what her testimony would be, Judge, . . . I’ll just leave it as it is.” As counsel expressly waived his right to testify, we find this enumeration to be without merit.

Judgment affirmed.

Birdsong, C. J., and Pope, J., concur.

Decided October 1, 1987

Rehearing denied October 15, 1987.

John E. Pirkle, for appellant.

Glenn Thomas, Jr., District Attorney, John B. Johnson III, Assistant District Attorney, for appellee.


author: Carley, Judge.

text:
    74382.
    SAPP v. THE STATE.
    (362 SE2d 406)
   Carley, Judge.

Appellant was tried before a jury on an accusation which charged him with a violation of OCGA § 40-6-391 (a) (4), the per se offense of operating a moving vehicle while having 0.12 percent or more by weight of alcohol in his blood. The jury returned a verdict of guilty. Appellant’s motion for new trial was denied and he appeals from the judgment of conviction and sentence entered on the jury verdict.

1. The general grounds are enumerated as error. The State produced evidence that a chemical analysis of appellant’s breath had been conducted pursuant to OCGA § 40-6-392 (a). The results of that analysis were introduced into evidence and showed that appellant had 0.13 percent of weight of alcohol in his blood. “If there was . . . 0.12 percent or more of weight of alcohol in the person’s blood, the person shall be in violation of paragraph (4) of subsection (a) of Code Section 40-6-391.” OCGA § 40-6-392 (b) (4). After a review of the entire record, we find that a rational trier of fact could reasonably have found from the evidence adduced at trial proof of appellant’s guilt beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. Appellant enumerates as error the admission of evidence of his intoxicated state at the time of his arrest, such as the smell of alcohol and his speech patterns, which did not show that the weight of alcohol in his blood was 0.12 percent or more. The contention is that such evidence showed a violation of subsection (a) (1) of OCGA § 40-6-391, a wholly different manner of committing the crime of driving with impaired ability than that which was alleged in the accusation. Appellant also enumerates as error the denial of his motion for continuance, which motion had been based upon the asserted “surprise” occasioned by the trial court’s admission of such evidence.

OCGA § 40-6-391 (a) establishes one crime of driving with impaired ability which may be committed in four alternative ways. Hogan v. State, 178 Ga. App. 534 (343 SE2d 770) (1986). Appellant was tried on an accusation which charged him with violating only subsection (a) (4) of OCGA § 40-6-391. Accordingly, the State could not prove that appellant had violated OCGA § 40-6-391 (a) other than by driving while having 0.12 percent or more by weight of alcohol in his blood. “ ‘ “To permit the prosecution to prove that a crime was committed in a wholly different manner than that specifically alleged in the indictment would subject the accused to unfair surprise at trial and constitute a fatal variance. . . . [Cits.]” [Cit.]’ [Cits.]” Cantrell v. State, 162 Ga. App. 42, 43 (290 SE2d 140) (1982). “[W]henever exigencies of proof exist as to whether an offense was committed in one of two methods proscribed by a statute, the prosecution may charge the accused in separate counts of a single indictment and let the jury select which method the evidence supports. [Cits.]” Walker v. State, 146 Ga. App. 237, 243 (1) (246 SE2d 206) (1978).

Accordingly, circumstantial evidence of appellant’s intoxication at the time of his arrest would not be admissible in this case as proof that he had violated subsection (a) (1) of OCGA § 40-6-391. Such evidence was, however, admissible as evidence of the circumstances surrounding appellant’s arrest for having violated subsection (a) (4) of OCGA § 40-6-391. “[W]here evidence is relevant for the purpose of showing the circumstances of the arrest, it will not be excluded because it incidentally shows the commission of another crime. It follows that admission of evidence as to the conduct of appellant... at the time [he was] arrested was not error.” Newman v. State, 239 Ga. 329, 330 (236 SE2d 673) (1977). It necessarily follows that the trial court did not err in denying appellant’s motion for a continuance, predicated upon the alleged “surprise” that such evidence would be admissible at his trial.

3. Appellant enumerates as error the trial court’s giving of jury charges on OCGA § 40-6-391 (a) (1) and on the rebuttable presumptions of OCGA § 40-6-392 (b).

Jury charges on OCGA §§ 40-6-391 (a) (1) and 40-6-392 (b) were irrelevant and unauthorized in this case. Appellant was only charged with violating OCGA § 40-6-392 (a) (4). Accordingly, “the [S]tate’s case did not involve or invoke any of the presumptions available under OCGA § 40-6-392. [Cit.]” Stewart v. State, 176 Ga. App. 148, 149 (335 SE2d 603) (1985). Had the trial court further instructed the jury that OCGA § 40-6-391 (a) (1) and the presumptions of OCGA § 40-6-391 (b) constituted a viable alternative basis upon which to return a guilty verdict, reversible error would have been committed. See generally Walker v. State, supra. However, the trial court did not so charge. Instead, the jury was instructed that if it found beyond a reasonable doubt that appellant had driven “a motor vehicle . . . while under the influence of alcohol and that his breath test indicated that his blood contained .13 percent of alcohol . . . [it] would be authorized to find [him] guilty. . . .” (Emphasis supplied.) Thus, the trial court, in effect, charged the jury that a guilty verdict required a finding that appellant had violated both subsections (a) (1) and (a) (4) of OCGA § 40-6-391. While this was erroneous, it was error which could only have been beneficial to appellant. A guilty verdict required only a finding that appellant had violated OCGA § 40-6-391 (a) (4). Accordingly, the trial court’s charge, although erroneous, is not a ground for granting appellant a new trial.

4. Appellant enumerates as error the admission into evidence of the results of his breath test showing 0.13 percent by weight of alcohol in his blood. Appellant urges “that the admissibility of chemical test results is dependent upon the State’s compliance with the rules and regulations promulgated by the Department of Public Safety” (Rielli v. State, 174 Ga. App. 220, 222 (3) (330 SE2d 104) (1985)), and that, the State having failed to prove compliance with those rules and regulations regarding calibration of the instrument used to conduct the test of his breath, the test results were inadmissible.

The only administrative rule and regulation regarding calibration of the instrument used to conduct breath tests is Rule 570-9-.06 (8), which provides: “The Director, State Crime Laboratory: will cause each instrument used in the administration of breath tests to be checked periodically for calibration and operation and a record of the results of all such checks to be maintained. . . .” “There is a presumption of law that a public officer has done his duty, and his official duties will be presumed to have been done rightly until the contrary is shown. [Cit.]” White Plains Carpet v. U. S. Fidelity &c. Co., 130 Ga. App. 158, 159 (202 SE2d 558) (1973). Accordingly, there is a presumption in this and in all other cases arising under OCGA § 40-6-391 that the Director of the State Crime Laboratory has caused the instrument used to administer the breath test to be checked periodically for calibration. However, in this case, the State did not merely rely upon the presumption. The State produced evidence that the machine used to test appellant’s breath had been calibrated “regularly” and “quite frequently.” Accordingly, the contentions that the State did not show that the machine had been calibrated according to the applicable administrative rules and that the trial court erred in admitting the test results are without merit.

5. At the outset of his trial, appellant objected that the State was being represented by the District Attorney for the Middle Judicial Circuit rather than the Solicitor of the State Court of Candler County. The trial court overruled this objection on the basis that it had appointed the District Attorney to serve as solicitor pro tempore. Appellant enumerates this ruling as error.

Section 5 (b) of Ga. L. 1985, pp. 4783, 4787 provides, in relevant part: “In the absence or disqualification of the solicitor of [the State] [C]ourt [of Candler County], the judge thereof shall appoint a solicitor pro tempore, who may be an assistant district attorney of the Middle Judicial Circuit... or who may be a duly qualified and practicing attorney in the State of Georgia. . . .” There is no requirement that the trial court’s appointment of a solicitor pro tempore be made in writing. Compare Cheely v. State of Ga., 251 Ga. 685 (1) (309 SE2d 128) (1983). However, even assuming that a written appointment were necessary, its absence would not require the reversal of appellant’s conviction. “ ‘When the appointment is made (the appointee) is an officer de facto for any official purpose, and his acts are legal, even if there be some error in the appointment.’ [Cits.]” Mach v. State, 109 Ga. App. 154, 156 (1a) (135 SE2d 467) (1964).

6. Appellant filed a timely pre-trial written motion wherein he sought to suppress evidence of his intoxication and to preclude the State from offering testimony in that regard. Included in appellant’s motion were numerous grounds, at least one of which was assertible by way of a motion to suppress, but most of which were assertible only by way of a motion in limine. See State v. Johnston, 249 Ga. 413, 414 (2, 3) (291 SE2d 543) (1982). The trial court refused to hold a pre-trial hearing to determine the admissibility of the evidence as against any of the grounds raised in appellant’s motion. Over appellant’s objection, the trial court stated that it would deal with the admissibility of the evidence during the course of the trial. In the ensuing trial, the trial court never conducted an evidentiary hearing to consider any grounds of inadmissibility raised in appellant’s pre-trial motion. Appellant enumerates as error the failure of the trial court to conduct an evidentiary hearing to determine the admissibility of evidence of his intoxication.

Appellant was clearly not entitled to a pre-trial hearing on such grounds of his motion as had alleged the State’s non-compliance with either OCGA § 40-6-392 or administrative regulations concerning the administration of a blood test. Such grounds for holding evidence to be inadmissible may be raised only by way of a motion in limine. See State v. Johnston, supra at 414 (3). “ ‘The trial court has an absolute right to refuse to decide the admissibility of evidence, allegedly violative of some ordinary rule of evidence, prior to trial. [Cits.]’ [Cit.]” Pierce v. State, 173 Ga. App. 551, 552 (2) (327 SE2d 531) (1985). At the trial itself, appellant did not renew his motion for an evidentiary hearing outside the presence of the jury on such grounds of his pretrial motion as had alleged non-compliance with OCGA § 40-6-392 or the administrative regulations concerning the administration of a blood test. Accordingly, the trial court did not. err in failing to hold such a hearing to determine the admissibility of the evidence and testimony as against such contentions.

However, unlike a pre-trial motion in limine, the filing of a pretrial motion to suppress mandates that an evidentiary hearing “shall” be held outside the presence of the jury before the contested tangible evidence is admitted at trial. As previously indicated, appellant, in moving that the tangible evidence of his intoxication be ruled inadmissible, raised at least one ground that would be assertible by way of a motion to suppress, to wit: the lack of probable cause for his arrest. See State u. Johnston, supra at 414 (2). Notwithstanding the inclusion of such a ground in appellant’s pre-trial motion, he was, as to that ground, never afforded a hearing outside the presence of the jury prior to the introduction into evidence of the tangible results of the chemical test of his breath. “Failure to hold this mandatory hearing was error. . . .” Gray v. State, 145 Ga. App. 293 (1) (243 SE2d 687) (1978). The error was preserved by appellant’s objection to the trial court’s ruling that the admissibility of the fruits of his arrest would be determined during the trial itself. Compare State v. Peabody, 247 Ga. 580 (1) (277 SE2d 668) (1981).

However, “harm or prejudice must be demonstrated before a violation of [OCGA § 17-5-30 (b)] can be said to give rise to reversible error. [Cit.]” State v. Peabody, supra at 582. At trial, appellant did not testify in his own defense and, had the same uncontested evidence that the State produced during its case-in-chief been produced in an evidentiary hearing held outside the presence of the jury, it would have demanded the denial of appellant’s motion to suppress. See generally State v. Golden, 171 Ga. App. 27 (318 SE2d 693) (1984). Accordingly, if appellant was harmed by the trial court’s ruling that the admissibility of the evidence of his intoxication would be determined during the trial, it was only to the extent that he was denied the opportunity to create a possible conflict in the evidence as to the existence of probable cause for his arrest without thereby waiving his right to remain silent as to the issues. As in Stiggers v. State, 151 Ga. App. 546, 549 (2) (260 SE2d 413) (1979), we conclude that the failure to afford appellant an evidentiary hearing on the existence of probable cause for his arrest is error which can be cured by a post-trial hearing in the trial court. Accordingly, appellant’s judgment of conviction “will be affirmed with direction that the trial court conduct a hearing to consider this issue. If on the basis of evidence introduced at such hearing the trial judge concludes [appellant’s arrest was without probable cause and that the motion to suppress] should be [granted], he must order a new trial. Appellant is granted leave to file a new appeal within 30 days of a trial court decision adverse to appellant on this issue if appellant contends the trial judge [erred] in his ruling.” Stiggers v. State, supra at 550-551 (2).

Judgment affirmed and case remanded with direction.

Banke, P. J., and Benham, J., concur.

Decided October 15, 1987.

Alan P. Layne, Bruce V. Durden, for appellant.

Richard A. Malone, District Attorney, for appellee.


text:
    75088.
    BRIDGES v. THE STATE.
    (362 SE2d 113)
   Deen, Presiding Judge.

Appellant Bridges was convicted of voluntary manslaughter in connection with the stabbing death of his brother-in-law. The extended family had gathered in Terrell County, Georgia, for the funeral of a family member. Prior to the funeral service appellant and the stabbing victim became embroiled in a fight in the kitchen of the relative with whom they were staying. One of the relatives present separated the two, took the knife over which they were struggling, and laid it on the kitchen table. The two combatants went their separate ways about the premises, but a short while later the victim allegedly came into the room where appellant was and made a taunting remark regarding the possibility of appellant’s killing him. Again they went in different directions, but only shortly thereafter, according to witnesses’ testimony, appellant walked into the living room and announced that he had just stabbed his brother-in-law. The relatives found the victim slumped in a bedroom chair, dead. Appellant made no attempt to leave the premises but, when law enforcement personnel arrived, showed them the lethal weapon, the same kitchen knife, lying in a pan of dishwater.

Upon being taken to the sheriff’s office, appellant was read his Miranda rights and a waiver of rights, affirmed that he understood them, signed the waiver, and stated that he was willing to talk without an attorney present. A clerical employee took down Bridges’ oral account of the killing, as outlined supra, and read it back to him, asking him at the end if it were correct or needed any additions or changes. According to the testimony at trial — Bridges’ own as well as that of the law enforcement officers — he affirmed the correctness and completeness of the statement and signed it. During this same time period he also executed forms requesting appointment of an attorney to represent him.

According to the record, appellant testified that he gave his statement willingly; he contends, however, that it nevertheless should not have been admitted into evidence because it was made after he had requested appointment of an attorney. Two of the three law enforcement personnel present during these activities testified that the request for an appointed attorney was not made until after appellant had signed the waiver and had dictated and signed the statement. The third law enforcement person could not recall with certainty the sequence of the events.

Decided October 15, 1987.

C. Truitt Martin, Jr., for appellant.

Charles M. Ferguson, District Attorney, for appellee.

At trial appellant attempted to introduce evidence of the victim’s reputation for violence. The trial court sustained the State’s objection and would not permit introduction of evidence on this point. On appeal Bridges enumerates two errors: (1) that the trial court erred in sustaining the State’s objection to the proffered evidence of the victim’s reputation for violence; and (2) that the court erred in admitting the custodial statement because, he alleges, it was made after he had requested that an attorney be appointed. Held:

Our examination of the extensive record in the instant case, including the two-volume transcript, indicates that there is no merit in either of appellant’s enumerations. Under Curtis v. State, 241 Ga. 125 (243 SE2d 859) (1978), at 126 et seq., evidence regarding the victim’s reputation for violence is admissible “only when there has been a prima facie showing [by the defendant] that three elements are present: that the deceased was the assailant; that deceased assailed defendant; and that defendant was honestly seeking to defend himself.” Compare Milton v. State, 245 Ga. 20 (262 SE2d 789) (1980), in which the accused testified that his victim had made prior threats and assaults against him, and that he shot her because he thought she was reaching into her purse to get a pistol. In the instant case appellant did not claim that the victim came after him with a weapon (or what might have appeared to be a weapon); he made no showing of any of the three elements prescribed in Curtis, supra. The testimony of none of the witnesses lends any shred of support to his contention that he acted in self-defense.

As to the admissibility of the custodial statement, appellant’s contention as to the sequence of the signing of the waiver, the statement, and the request for appointment of an attorney is unsupported by any testimonial or documentary evidence. The transcript reveals that the jury was fully and correctly charged on this point.

Neither of appellant’s enumerations is meritorious.

Judgment affirmed.

Birdsong, C. J., and Pope, J., concur.


text:
    75188.
    ACREY v. THE STATE.
    (362 SE2d 122)
    Decided October 15, 1987.
    Kerry Acrey, pro se.

      Stephen F. Lanier, District Attorney, Danny W. Crabbe, Assistant District Attorney, for appellee.
   Deen, Presiding Judge.

Kerry Acrey filed a notice of appeal from his conviction of reckless conduct and it was docketed on June 5, 1987. He filed a motion for an extension of time in which to file the enumeration of error and brief, and the extension was granted until July 9, 1987. He has not filed anything to date. On June 15, 1987, the State filed a motion to dismiss the appeal contending that it was untimely filed.

1. Appellant was tried on September 30, 1986, and a motion for a new trial was filed October 27, 1986. This motion was denied on February 27, 1987. While the ruling on that motion was pending, he filed an extraordinary motion for new trial based on newly discovered evidence. That motion was denied on March 12, 1987. The court held that the witness who was claimed to be the newly discovered evidence could have been produced at trial. It is obvious from the dates of the motions involved that appellant did not need to file an extraordinary motion for a new trial because his motion for a new trial was pending and he could have simply amended it. We will therefore consider it as an amendment to his motion for a new trial and consider the appeal from this order as the date from which his time for appeal began to run. His appeal was therefore timely filed. The State’s motion to dismiss is denied.

2. Appellant has failed to respond to this court’s order requiring him to file an enumeration of errors and a brief. We must follow the whole court case of Conyers v. State, 183 Ga. App. 591 (359 SE2d 454) (1987), and review the record, although the holding in Conyers has rendered an order of this court lifeless and meaningless. We have examined the record that was submitted on appeal and find no error.

Judgment affirmed.

Birdsong, C. J., concurs. Pope, J., concurs in the judgment only.


text:
    75251.
    DAVIDSON v. WILLIS.
    (362 SE2d 115)
   Deen, Presiding Judge.

This case involves a series of transactions reeking, on both sides, of malfeasance, misfeasance, non-feasance, and reprehensible acts ranging from the one extreme of active fraud and duress to the other extreme of failure to exercise what would even approach the ordinary care expected of that darling of the law, the reasonable prudent man. Appellant Gilbert Davidson, who controlled several corporations as well as being Trustee for the Employee Pension Trust for one of the corporations (Davidson, Inc.), in early 1978 made available to a neighbor, appellee Willis, an importer by trade, $15,000 in Pension Trust funds to enable the latter to obtain a letter of credit for the importing of certain goods manufactured in Korea, the profits from which would be used to repay the loan plus interest. The deal did not materialize because of the facility’s inability to supply items meeting specifications, but Willis repaid neither principal nor interest, subsequently admitting that he had used the funds in the operation of his own corporation, Unicorn, Ltd. In so admitting, Willis pointed out (correctly) that the loan document imposed no restriction on the use to which the funds were to be put. In June 1978 Unicorn executed a demand promissory note for the $15,000; apparently, however, no payment was ever tendered.

In late 1979, despite the fact that Willis had not repaid the $15,000 to the Pension Trust, Davidson and Willis entered into a joint venture between the Davidson Co. (apparently a family-owned corporation entirely separate from Davidson, Inc., whose Employee Pension Trust was plaintiff below and appellant here) and Unicorn, Ltd., for importing from Korea certain manufactured goods. As inducement for Davidson to participate in the joint venture, Willis allegedly showed him copies of “firm orders” for the goods placed by Georgia businesses; it was revealed later, however, that one of the “orders” had never been placed at all by the company whose name and address appeared on the invoice, and that the goods shown on the other invoice had been rejected by the other named firm for allegedly poor quality. Davidson had posted with the lender bank collateral consisting of certain certificates of deposit belonging to the Pension Trust; when the purported business transaction did not go through, the bank foreclosed on the certificates of deposit. Examination of the joint venture agreement reveals that Davidson signed in his capacity as President of the Davidson Company, that the agreement made no mention at all of the Pension Trust, and that the agreement contained a provision expressly forbidding either party to assign its “interests and rights.”

Davidson then devised a scheme whereby he falsely represented to Willis that a foreign buyer was interested in buying the unsold imported items, and thereby induced Willis to sign, in October 1983, a bill of sale as joint venturer. Davidson then revealed that it was Willis himself to whom the goods and accounts receivable were to be sold, in exchange for a consideration consisting of a promissory note for $125,000 (the amount allegedly owed by Willis in his various personae, and incorporating a security interest in the unsold items, the accounts receivable, and the proceeds of a pending claim against the Korean manufacturer of some of the defective parts), plus a security deed on his residence. Willis then tore up the bill of sale (Davidson later taped it together and fastened it to the other documents), but when Davidson threatened to have him prosecuted, he signed the promissory note and related documents. Willis then filed with local police a complaint against Davidson for assault, false imprisonment, and duress; the complaint was never prosecuted, and Davidson alleged subsequently that Willis had affirmatively concealed from him the fact that the complaint had been filed.

In February 1985 Davidson, in his capacity as Trustee of the Employee Pension Trust, filed an action in two counts against Willis in the Fulton County State Court, seeking collection of the face amount of the note plus interest and attorney fees, and damages for fraudulent inducement to advance substantial sums of money. When, after several delays, the case went to trial in March 1987, defendant Willis moved for directed verdict at the close of plaintiffs evidence. The trial court granted the motion on both counts, holding that there was no sufficient consideration for the obligation sued upon in Count I; and as to Count II, that the fraud action not only was not assignable (i.e., from the corporation to the Pension Trust), but that it was barred by the running of the statute of limitations.

On appeal Davidson enumerates as error the granting of a directed verdict, contending that there was sufficient evidence adduced to authorize a verdict for plaintiff on each count. Held:

Our scrutiny of the voluminous record in the instant case persuades us that the judgment below should be affirmed. On Count I, the course of both parties’ actions leading up to the signing of the promissory note and related documents, and subsequent thereto as well, reads like something out of a comic strip. Although appellant is correct in contending that no consideration is required for an antecedent obligation, the trial court’s ruling that no antecedent obligation was involved is borne out by the terms of the documents prepared by Davidson and signed (clearly under actual duress, if not of sufficient magnitude to constitute legal duress) by Willis. See OCGA § 11-3-408; Deep S. Svcs. v. Wade, 248 Ga. 80 (281 SE2d 561) (1981). The “consideration” (unsaleable parts and uncollectible accounts) which Willis was forced, under threat of prosecution, to accept in return for signing the promissory note and related documents, could hardly, by any stretch of the imagination, be regarded as a quid pro quo for a note for a $125,000 indebtedness plus the deed to one’s home.

Decided October 15, 1987.

Richard L. Stumm, for appellant.

Charles E. Brown, for appellee.

As to Count II, examination of the joint venture agreement reveals (as noted, supra) that appellant Davidson signed as President of Davidson Co., Inc. — not as Trustee of the Pension Trust; there was no mention at all of the latter entity in the document. See OCGA § 11-3-403; Yeomans v. Coleman, Meadows &c. Co., 167 Ga. App. 646 (307 SE2d 121) (1983). As to Davidson’s purportedly tardy recognition of the spuriousness of Willis’ representations, we cannot avoid the conclusion, after reviewing the chain of events and the papers pertaining thereto, that any ordinary prudent man — and a fortiori one occupying the fiduciary position of Trustee — was guilty at the very least of lack of due diligence, in entering agreements committing funds — others’ funds, at that — without verifying the authenticity of the “orders” and the reputations of the manufacturers/suppliers. If Davidson truly did not discover the allegedly fraudulent discrepancies between representation and fact until as late as he asserts he did, then he certainly should have done so, given the series of events that occurred. He adduced no competent, credible evidence that would support his contentions. Although there were conflicts in the evidence presented by the parties, none was of such scope or materiality as to preclude the direction of a verdict for defendant. OCGA § 9-11-50 (a). While we would not go so far as to say that justice triumphed in the action below, we can say that at least one of the parties received no more than his just deserts.

Judgment affirmed.

Birdsong, C. J., and Pope, J., concur.

       He also filed a third count for slander and libel pertaining to the filing of the police complaint. He subsequently dismissed that count without prejudice.


text:
    75259.
    FINNEGAN et al. v. DAVIDSON COMPANY.
    (362 SE2d 117)
   Deen, Presiding Judge.

The appellee, Davidson Company, commenced this action against Roger and Gail Finnegan to recover on a promissory note for $15,000, executed by the Finnegans in favor of the appellee. The trial court granted summary judgment for the appellee on the note. On appeal, the Finnegans contend that summary judgment was inappropriate because a factual issue existed over their defense of fraudulent inducement and because there was a pending counterclaim. Held:

In support of its motion for summary judgment, the appellee submitted the affidavit of its president, showing the execution and nonpayment of the promissory note. The appellee’s evidence did not address the set-off counterclaim asserted by the Finnegans stemming from the sale of a vehicle.

Decided October 15, 1987.

David E. Spalten, Lex A. Watson II, for appellants.

Hall F. McKinley III, for appellee.

As noted by the Finnegans, fraud in the inducement of a contract is a good defense to the enforceability of the obligation. Morgan v. Hawkins, 155 Ga. App. 836 (273 SE2d 221) (1980). However, a party may not withstand a motion for summary judgment merely by frantically waving a flag of fraud. The Finnegans claimed that (1) after Gilbert Davidson had purchased an interest in the corporation owned by the Finnegans, Davidson Company loaned the Finnegans $15,000, so that they could purchase $15,000 worth of the corporation’s stock, thereby adding to the capital assets; (2) that subsequently, the corporation suffered business losses and was unable to meet obligations secured by the corporation’s equipment; and (3) that Davidson paid those corporate obligations but took title to the equipment in return, and eventually took the equipment, thus destroying the corporation’s ability to conduct business. This evidence may demonstrate shrewd and unsympathetic business practices, but not fraud in the inducement to sign the promissory note. Accordingly, summary judgment for the appellee was appropriate. Cf. Citizens Trust Bank v. Tyler, 162 Ga. App. 589 (291 SE2d 95) (1982). Moreover, it was not error to grant summary judgment in the main action even though the appellants had a pending counterclaim. Mock v. Canterbury Realty Co., 152 Ga. App. 872 (264 SE2d 489) (1980).

Judgment affirmed.

Birdsong, C. J., and Pope, J., concur.


text:
    75323.
    STEPHENS v. STEPHENS.
    (362 SE2d 118)
   Deen, Presiding Judge.

The appellee, Mary Jane Stephens, sued her son, William Stephens (the appellant here), and his wife for conversion and fraud, and eventually prevailed. The judgment entered on the jury verdict specified that “[judgment is hereby rendered in favor of the plaintiff with regard to all allegations asserted in the counterclaim filed on behalf of defendant. . . .” In that counterclaim, the appellant had asserted ownership of a 1977 Buick automobile and alleged conversion of that vehicle by the appellee.

Decided October 15, 1987.

William P. Holley, Jr., for appellant.

Walter B. McClelland, for appellee.

Subsequently, the appellee moved to have the appellant held in contempt of that judgment, based upon his failure to surrender possession of the Buick and convey its title to the appellee. Following a hearing, the trial court cited the appellant for contempt, ordered return of the vehicle, and awarded the appellee $500 attorney fees. This appeal followed. Held:

1. It is undisputed that the appellant refused to surrender possession of the Buick to the appellee. Reading the judgment entered on the jury verdict in conjunction with the actual counterclaim referred to by that judgment, the trial court’s citation of contempt was obviously proper. That conclusion follows as surely as does one and one equals two. The appellant’s contention that the issue of ownership of the Buick actually was not litigated and adjudicated in the lawsuit is unsupported by anything from the record. Ranger Constr. Co. v. Robertshaw Controls Co., 166 Ga. App. 679 (4) (305 SE2d 361) (1983).

2. The appellee has moved to dismiss the appeal on the grounds that (1) no final judgment has been entered, and (2) an application for discretionary appeal is required pursuant to OCGA § 5-6-35 (a) (6), (10), and this court has already denied such an application filed by the appellant. A final judgment was rendered in this case since the trial court found the appellant in contempt and imposed punishment. See In Re Crudup, 149 Ga. App. 214 (253 SE2d 802) (1979). This appeal is from a finding of wilful contempt of a previous court order entering judgment on a jury verdict (not dealing with alimony or child custody), and as such it is directly appealable. This court’s denial of the appellant’s application for discretionary appeal, filed simultaneously with the direct appeal, is not inconsistent with this holding. Accordingly, the appellee’s motion to dismiss is denied.

3. The appellee also seeks imposition of damages against the appellant, pursuant to OCGA § 5-6-6, for filing a frivolous appeal. We agree that this appeal apparently was brought only for purposes of delay, and grant the appellee’s motion. The Clerk of this Court is directed to add 10% damages upon the remittitur.

Judgment affirmed with damages.

Birdsong, C. J. and Pope, J., concur.


text:
    75340.
    HUGGINS v. THE STATE.
    (362 SE2d 120)
    Decided October 15, 1987.

      James W. Milam, Rickie L. Brown, for appellant.
   Deen, Presiding Judge.

Appellant Lane Huggins was indicted on two counts of aggravated child molestation, one involving his nine-year-old daughter and the other, his nine-year-old niece. He was acquitted of the charge of molesting the niece, but convicted of molesting the daughter. His motion for new trial on the general grounds was denied, and he appeals to this court, enumerating as error the trial court’s holding the nine-year-old daughter competent to testify and its ruling that there was sufficient competent evidence to authorize a verdict of “guilty.” Held:

Our examination of the entire record, and especially of the trial transcript, persuades us that there is no merit in either of appellant’s enumerations. A careful reading of the nine-year-old victim’s testimony as a whole, and of the qualifying dialogue between the court and the child in particular, reveals that she knew the difference between truth and falsehood and understood the meaning of an oath, once the latter word was defined for her in terms with which she was familiar. Her answers to questions regarding her everyday life and regarding the events for which defendant was on trial were clear and unambiguous. Determination of the competency of witnesses is a matter within the trial court’s discretion, and that discretion will not be disturbed absent manifest abuse. Head v. State, 180 Ga. App. 901 (350 SE2d 854) (1986); Eastep v. State, 170 Ga. App. 401 (317 SE2d 259) (1984). We find no abuse of discretion in the instant case.

There was testimony that, during the period when the alleged molestations occurred, the children had examined magazines containing explicit sexual material, such magazines belonging to appellant’s brother, who at the time lived next door. There was further testimony that the discovery of the children’s having looked at this material initiated the conversation between the victim and her mother which led to disclosure of the alleged acts of molestation. While one child indicated the magazines were shown to them by appellant’s brother, others testified they had opened a desk drawer and found them. As to the sufficiency of the evidence, the record reveals that, in addition to the testimony of the daughter, there was corroborating testimony sufficient to authorize a rational trier of fact to find appellant guilty as charged beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Judgment affirmed.

Birdsong, C. J., and Pope, J., concur.

Jack 0. Partain III, District Attorney, Lee R. Taylor, Assistant District Attorney, for appellee.


text:
    75548.
    BURNETTE v. THE STATE.
    (362 SE2d 121)
   Deen, Presiding Judge.

The appellant, Timothy Burnette, was convicted of driving under the influence of alcohol. In the early morning hours of July 31, 1983, Burnette’s vehicle collided with two other vehicles that were stopped at least partially on the road. Burnette’s head struck his car’s windshield with sufficient force to crack the windshield and to cut his forehead, but, to the investigating police officers and the drivers of the two other vehicles, he denied any significant injury. Because the officers noticed a strong odor of alcohol about Burnette and because Burnette could not stand up without assistance, the officers arrested Burnette. After being informed of his implied consent rights, he refused to submit to any chemical test to determine his blood alcohol content. Despite Burnette’s denial of any injury, the officers transported him to a hospital, where a doctor examined and released him. At no time did the police officers or the drivers of the two other vehicles observe Burnette to be unconscious.

At the trial, Burnette testified that he had had only two drinks that night (before 11:00 p.m.), while dining with his girl friend. He also claimed that (1) he was dazed from his head striking the windshield; (2) he actually had slipped in and out of consciousness; (3) he had asked for an ambulance several times; and (4) he had not refused to take a chemical test, but had merely stated that he would not take one until he had received medical attention. Held,-.

1. Burnette contends that the trial court erred in refusing to charge the jury that the police officer would have been authorized to have a blood alcohol test performed on Burnette when Burnette was unconscious. If a driver of a vehicle is unconscious and therefore incapable of refusing to consent to a blood alcohol test, a police officer may have a blood sample taken while the person is unconscious. OCGA § 40-5-55 (b); Holmes v. State, 180 Ga. App. 787 (350 SE2d 497) (1986). However, in this case, it was uncontroverted that at the time the police officer advised Burnette of his informed consent rights and requested him to submit to a blood test, Burnette was conscious. The trial court properly declined to give the jury charge requested by Burnette.

2. The trial court admitted into evidence several photographs of the intersection where Burnette’s vehicle collided with the other two vehicles. One of these photographs was taken at night, with the road obviously illuminated by a vehicle’s headlights. In response to Burnette’s objection that the photograph should be excluded because the light’s “origin and accuracy could not be accounted for,” the trial court obscured with masking tape the beam of light shown in the photograph. Burnette’s objection before the trial court was picayune; it is absolutely worthless before this court.

Decided October 15, 1987.

Alan C. Manheim, for appellant.

Patrick Head, Solicitor, for appellee.

3. In cross-examining Burnette, the prosecutor asked him if he knew where his former girl friend lived and whether he could have called her to testify on his behalf. Relying upon Pritchard v. State, 160 Ga. App. 105 (286 SE2d 338) (1981), Burnette contends that this line of questioning was impermissibly burden-shifting. Unfortunately for Burnette, however, Pritchard expressly approved such a line of questioning.

Judgment affirmed.

Birdsong, C. J., and Pope, J., concur.


author: Birdsong, Chief Judge.

text:
    74912.
    EMPIRE FOREST PRODUCTS, INC. v. GILLIS.
    (362 SE2d 77)
   Birdsong, Chief Judge.

Jurisdiction — Non-Resident Joint Tortfeasor — Transfer. Pertinently stated, Empire Forest Products, Inc. (Empire) entered into a timber harvesting contract with Willie Gillis. Empire is a resident corporation of Ben Hill County. Gillis’ land lies in Telfair County. Empire’s agent at the time, Roberson, also is a resident in Telfair County. Roberson was charged with the responsibility of monitoring the faithful and proper execution of the timber harvest. Empire commenced the harvest of trees, being limited by the contract to harvesting trees of nine inches in diameter at breast height. Empire agreed to pay $75,000 for the harvest. After the work commenced, Gillis determined that trees under nine inches diameter at breast height were being harvested and that Empire’s harvesters were assertedly using improper clearing procedures, resulting in damage to or destruction of renewal growth. Gillis brought suit in Telfair County against Roberson and Empire as joint tortfeasors. In its answer to Gillis’ complaint, Empire denied venue and jurisdiction of the Telfair Superior Court over the cause of action or against Empire personally. During the trial of the issue, Empire sought a directed verdict based upon lack of jurisdiction should a verdict be returned in favor of Roberson. Empire also sought a counterclaim contending that Gillis had prevented a full harvest as contemplated by the contract and sought a recovery of the unearned amount of the $75,000 paid before the harvest commenced. After all the evidence had been completed and the charge of the court given, the jury returned, a verdict in favor of Roberson and against Gillis but against Empire and in favor of Gillis. After the verdict in favor of the resident joint tortfeasor but against the non-resident joint-tortfeasor, Empire voluntarily dismissed its counterclaim against Gillis in Telfair County and moved the trial court to transfer the case to Ben Hill County. This motion was denied by the trial court. Empire then moved for a judgment n.o.v. based upon lack of jurisdiction and venue or in the alternative to grant a new trial on the same grounds. This motion also was denied. Empire now brings this appeal asserting four enumerations of error. Held:

1. In its first two enumerations of error, Empire contends the trial court erred in denying its motion for judgment n.o.v. in that the court had no jurisdiction to enter judgment against Empire once the resident joint tortfeasor was dismissed, and in like vein erred in refusing a transfer of the case to Ben Hill County. The only evidence relating to Empire having an office for business in Telfair County was speculation that because Empire stored cut logs on property it had once owned in Telfair County it must have had an office there. Uncontradicted evidence by ex-employees of Empire as well as its president, however, established that in October 1984, Empire sold its property and logging business to Canal Logging Company. Thereafter, Empire had no employees, no property, and no business premises in Telfair County. Thus at the time Gillis’ complaint was filed, the uncontradicted relevant evidence demanded the conclusion that Empire was a non-resident of Telfair County. See Myers v. Phillips, 197 Ga. 536, 542 (29 SE2d 700); Stepp v. Stepp, 195 Ga. 595 (2) (25 SE2d 6).

Where joint tortfeasors residing in different counties are sued in the county of one, and on the trial of the case the resident defendant is discharged and a verdict returned solely against the non-resident defendant, the court is without jurisdiction to enter a judgment against the non-resident defendant. Southeastern Truck Lines v. Rann, 214 Ga. 813 (108 SE2d 561); Morris v. Bell, 100 Ga. App. 341, 342 (111 SE2d 270). In such a case, it is said that where the resident co-defendant is found not liable by the jury, the court’s jurisdiction over the non-resident defendant vanishes. Thornhill v. Bullock, 118 Ga. App. 186, 187 (162 SE2d 886). However the want of jurisdiction and venue over the action and person may be waived either expressly or impliedly by the conduct of the non-resident defendant. Burger v. Noble, 81 Ga. App. 759, 761 (59 SE2d 761). Gillis argues that by its pretrial and trial conduct in the court in Telfair County, Empire has in point of fact and law waived the jurisdictional-venue issue. Moreover, Gillis argues that the motion to transfer was not timely made. Lastly, Gillis urges that Empire maintained an office in Telfair County, a point already rejected in this decision.

We also reject the remaining arguments. It is patent that Empire preserved the issue of jurisdiction and venue in its pleadings and answer. It moved for a directed verdict upon the issue of venue should a verdict be returned in favor of the resident defendant, Roberson. It requested a charge on the issue of lack of venue should a favorable verdict be returned on behalf of Roberson. It moved for a judgment n.o.v. or alternatively for a new trial because of the lack of jurisdiction and venue.

Notwithstanding Gillis’ arguments to the contrary, Empire’s actions in defending the tort claim against it in the trial and even in the appellate courts do not constitute waiver of its defense of lack of personal jurisdiction based upon improper venue. See Steding Pile Driving Corp. v. John H. Cunningham & Assoc., 137 Ga. App. 165 (1, 2) (223 SE2d 217). In fact it has been held that even if the defense does not become available to the non-resident defendant until appellate action removes the resident defendant from the case, such appellate action nevertheless removes the trial court’s jurisdiction over the nonresident defendant in the absence of waiver. See Long v. Bruner, 171 Ga. App. 124, 125 (1) (318 SE2d 818). There being no jurisdiction or waiver thereof, the trial court was obligated to dismiss the complaint in Telfair County.

Having held that the trial court erred in failing to dismiss the complaint as to Empire (see Georgia Kraft Co. v. Laborers’ Intl. Union, 170 Ga. App. 581, 588 (317 SE2d 602)), we must consider the applicability of the Uniform Transfer Rules, 251 Ga. 893. Rule T-4 provides in pertinent part: “These rules shall become operative when a party makes a motion to dismiss, or any other motion or defense, on the basis that the court in which the case is pending lacks jurisdiction or venue or both. Such motion shall be treated as a motion pursuant to these rules.” Until final judgment is entered in the case, the case remains in the bosom of the court and is still pending. Inasmuch as the court cannot enter judgment under the circumstances here presented, the trial court likewise erred in not ordering the case transferred to the proper forum in Ben Hill County. See Long v. Bruner, supra at pp. 125, 126 (2).

2. Part of Empire’s third enumeration of error is rendered moot by the disposition of the first two enumerations of error. In the event of retrial in Ben Hill County, the agent Roberson will not be personally involved in the trial of the issue of negligence. However, insofar as the charge indicated that Empire’s counterclaim could only be considered if Empire was found not negligent, this would seem to be error. A claim that arises out of the transaction or occurrence for which the suit originally is filed, is considered a compulsory counterclaim and must be established at the time of the answer. Hickman v. Frazier, 128 Ga. App. 552 (197 SE2d 441). It may be considered as offsetting to the main claim if appropriate or independent of the main claim even if the main claim is dismissed. Young v. Jones, 140 Ga. App. 66 (230 SE2d 32). We assume that if the case is retried, this incorrect characterization will not reoccur.

Decided September 28, 1987

Rehearing denied October 16, 1987.

G. Thomas Davis, Lela L. Smith, for appellant.

B. W. Walker, for appellee.

3. In its last enumeration of error, Empire complains the trial court incorrectly curtailed its cross-examination of Gillis’ expert witness on the issue of personal knowledge of the presence of young reproduction timber on Gillis’ land. The scope of cross-examination lies within the exclusive exercise of discretion of the trial court. We are reluctant to interfere with the exercise of that discretion in the absence of abuse. See Kessel v. State, 236 Ga. 373, 375 (223 SE2d 811). We cannot fault the trial court in its determination that the continued questions to the expert were covering grounds which previously had been covered in cross-examination. In the event of a further trial, we anticipate this complaint will not again arise.

Judgment reversed and case remanded for action consistent with this opinion.

Deen, P. J., and Pope, J., concur.


text:
    75421.
    CITY NATIONAL SERVICE CORPORATION v. TRIZEC WESTERN, INC.
    (362 SE2d 102)
   Deen, Presiding Judge.

City National Service Corporation appeals from the grant of summary judgment in favor of Trizec Western, Inc. The parties entered into a lease agreement for a five-year period commencing September 1, 1980, and ending August 31, 1985. On August 5, 1985, Trizec Western filed suit against City National, alleging that it had failed and refused to pay rent from December 1, 1984, through June 1, 1985, and sought to recover the rent for that period plus accrued interest and attorney fees. City National answered, admitted the lease agreement and denied that it owed Trizec Western anything under the lease. It claimed that there was a subsequent agreement which constituted an accord and satisfaction of all claims against it. Appellee moved for summary judgment, relying upon the lease and an affidavit of its Credit and Collections Administrator which verified its claim that City National had refused to pay the rent due and owing under the lease.

Decided October 5, 1987

Rehearing denied October 16, 1987.

Lewis N. Jones, for appellant.

Stanley E. Kreimer, Jr., for appellee.

Appellant responded to the motion for summary judgment with the affidavit of City National’s attorney, which stated that he spoke with certain named persons at Trizec Western and it was orally agreed that, because of financial problems being experienced by his client, the lease could be terminated and City National would move out of the premises, and that Trizec Western’s building manager allowed the company to use the building elevator to vacate the premises.

The trial court found that the parties had entered into a lease agreement, that City National had failed to pay the rent due and owing under the lease, and that the affidavit of City National’s attorney contained no evidence of consideration to support its defense of accord and satisfaction. Held:

“An accord and satisfaction is created when the parties, by a subsequent agreement, have satisfied the former one, and the latter agreement has been executed. The execution of a new agreement may itself amount to a satisfaction where it is so expressly agreed by the parties; and without such agreement, if the new promise is founded on a new consideration, the taking of it is a satisfaction of the former contract . . . An accord and satisfaction is itself a contract and requires a meeting of the minds in order to render it valid and binding ... As a general rule, whether there is an accord and satisfaction is a question for the jury.” Woodstock Rd. Investment Properties v. Lacy, 149 Ga. App. 593, 594 (254 SE2d 910) (1979). In ruling on a motion for summary judgment the court cannot resolve the fact, but it must determine if there is a material issue of fact requiring jury resolution. Bagley v. Firestone Tire &c. Co., 104 Ga. App. 736 (123 SE2d 179) (1961). As there was no evidence to support an accord and satisfaction as set forth in Woodstock Rd. &c. Properties v. Lacy, supra, the court below did not err in granting summary judgment in favor of appellee.

Judgment affirmed.

Birdsong, C. J., and Pope, J., concur.


author: Beasley, Judge.

text:
    74393.
    POPE v. THE STATE.
    (362 SE2d 123)
   Beasley, Judge.

Pope was charged with two counts of theft by taking a motor vehicle, burglary, possession of less than one ounce of marijuana, and possession of a firearm by a convicted felon. After indictment, Pope’s attorney, Remiek, filed a petition for a psychiatric examination which was granted by the court with direction that the findings be returned to it. On the date trial was set, Remiek filed a special plea of incompetency to stand trial pursuant to OCGA § 17-7-130. At arraignment, Pope engaged another lawyer, Garland, and entered guilty pleas to the first three counts.

Six weeks later Pope, through yet a third attorney, Smith, filed an amended petition to withdraw his guilty pleas and an extraordinary motion for new trial on the grounds that the pleas were not knowingly, intelligently and voluntarily entered because he was mentally incompetent at that time, and that the judgments and sentences imposed on the pleas were invalid because the special plea of incompetency was still pending at the time of the pleas. The trial court overruled the petition and appeal was taken to this Court. In Pope v. State, Case No. 70294, decided September 6, 1985, and not officially reported, this Court, in a two-judge decision with one judge concurring specially, determined that federal constitutional requirements mandated that allegations in Pope’s petition be determined under OCGA § 17-7-130 (a) in regard to his competency to enter his guilty pleas. Accordingly, the case was remanded for further proceedings.

The trial court conducted a hearing to ascertain if there was evidence capable of production as to defendant’s mental state at the time he entered the guilty pleas. It subsequently entered an order finding that there was evidence of a nature and quality that would allow a jury to determine Pope’s mental capacity at the time of the pleas and ordering that the issue of mental competency proceed to a jury trial. Defendant made an extraordinary motion for the court to reconsider the order on the basis that he had been unable to locate a doctor whose testimony was assertedly crucial in making the determination as to his competency. After hearing argument, the court denied the motion. The issue was tried before the jury, which found against the plea of incompetency, and the court entered final judgment thereon; it is appealed.

Appeals from adverse determinations in competency trials have been held to be interlocutory in nature and therefore subject to the procedure of interlocutory review including the ten-day certificate. See, e.g., Watson v. State, 229 Ga. 787, 789 (1) (194 SE2d 407) (1972); Spell v. State, 120 Ga. App. 398 (170 SE2d 701) (1969). However, in this case the admissions of guilt for the substantive offenses having occurred and the denial of the motion to withdraw the pleas and the extraordinary motion for new trial having gone up on appeal, the judgment from the competency trial is a final one. In fact the prior opinion stated: “ Tf the jury finds that the appellant was not mentally competent at the time of his trial, the [guilty pleas] in the main case must be set aside. On the other hand, if the appellant fails by a preponderance of the evidence to prove incompetence at the time of his trial, the [pleas] of guilty shall stand.’ ” Since final judgment was entered allowing the pleas to remain in force and effect, direct appeal is proper.

1. In three separate enumerations of error, Pope asserts the general grounds, reviewing the evidence at the competency trial.

The trial of a special plea of insanity or mental incompetency is in the nature of a civil proceeding. Banks v. State, 246 Ga. 178, 181 (3) (269 SE2d 450) (1980). In our consideration of the general grounds we would not have the discretion to grant a new trial if there is any evidence to support the verdict. OCGA §§ 5-5-20; 5-5-21; see the cases annotated. In such a proceeding, the burden of producing evidence is on the defendant. Banks v. State, supra. There was evidence to support the verdict of competency.

2. In enumerations four and five, appellant maintains that the court erred in ordering the case for a jury trial on the special plea and in denying his motion to reconsider the order because he claims that “a nunc pro tunc determination of competency two and one-half years after his guilty pleas is a denial of due process of law afforded to him under the Constitution of the State of Georgia, and of the United States.” He claims that this was a denial in particular because he was unable to locate the doctor who examined him during his two-week stay at Central State Hospital just prior to his guilty pleas. He claims the doctor had gone back to Turkey.

Appellant’s reasons for need of this evidence were that “the testimony of the doctor was crucial for a determination of the effect of an abrupt withdrawal from Haldol, plus the fact that the doctor would be examined as to why he prescribed Haldol and the dosage that he prescribed.”

To begin with, the state stipulated to the medical records from Central State Hospital, so the jury had the benefit of those records, including the final summary format prepared by Dr. Pamir, the physician in question, which included defendant’s reason for admission, past history, mental and physical status, laboratory, x-ray and consultation reports, treatment and hospital course, condition on release, final diagnosis, recommendations and prognosis. Included was the prescription of Haldol, the dosage, the reduction of it, the reason therefor, and the results thereof. Even assuming that the doctor could adequately remember two and one-half years later in any greater detail the reason for prescribing the Haldol, there was no showing that such testimony would materially affect the question of defendant’s competency at that time, particularly since the complete medical record was in evidence. As to evidence about the effects, if any, from an alleged “abrupt withdrawal from Haldol” such testimony was obtainable from other experts in the field, and in fact was elicited from another physician. The appellant has failed to demonstrate how he was harmed by the unavailability of the doctor, i.e., how the doctor’s testimony would have contributed to showing incompetency at the time of the pleas. See Smalls v. State, 153 Ga. App. 254 (265 SE2d 83) (1980).

The asserted denial of due process because of the passage of time from the entry of the pleas to the determination of competency has been decided adversely to him. Baker v. State, 250 Ga. 187 (297 SE2d 9) (1982).

3. Appellant next enumerates error in the denial of his motion in limine seeking to prohibit the introduction of the guilty plea transcript.

The substantive charges were not at issue in the competency trial. The sole issue was whether or not Pope at the time of the pleas was capable of understanding the nature and object of the proceedings against him. Brown v. State, 256 Ga. 387, 388 (349 SE2d 452) (1986). What transpired during the pleas was therefore not only relevant but critical on the sole question before the jury.

The transcript showed that defendant was represented by attorney Garland and entered pleas of guilty to the first three counts of the indictment. Defendant’s father was present, spoke to the court on behalf of his son, and stated he believed his son understood what he was doing in entering the pleas. Defendant responded lucidly to all of the court’s questions and himself explained what he had done so as to constitute a factual basis for the pleas. He stated that he was entering the pleas freely and voluntarily. In responding to whether he was under the influences of any alcohol or drugs, he said he had just been prescribed and taken Mellaril but nevertheless realized and fully understood what he was saying. The plea negotiations were described, and the court imposed a commensurate sentence.

Appellant further complains that the issue of incompetency should have been tried prior to the entry of his pleas. The fact that this was not the case was due to defendant’s own actions, i.e., his desire to enter the pleas at the time that he did. He could have insisted on the jury determination of competency prior to his pleading or going to trial on the substantive offenses. Post-judgment determination of a special plea of incompetency has been permitted by our Supreme Court in its consideration of federal constitutional requirements. See Baker v. State, supra.

Decided October 16, 1987.

Joseph L. Smith, for appellant.

E. Byron Smith, District Attorney, Hugh D. Sosebee, Assistant District Attorney, for appellee.

4. Lastly, appellant complains that the court erred in allowing the state to elicit testimony from his father about the consequences of the outcome of the trial of the special plea, and in denying his motion for mistrial based on such testimony. The court allowed the line of questioning and the testimony and denied the mistrial on the basis that it was relevant as to the credibility of the witnesses.

The court fully instructed the jury it was not to be concerned with the result of its verdict but could consider a witness’ understanding of the effect of the verdict in determining the witness’ credibility, i.e., motive or interest in the outcome of a suit. Interest of a witness in a case is at issue in passing on credibility. See, e.g., Dunagan v. Elder, 154 Ga. App. 728 (270 SE2d 18) (1980). The party’s clear interest in the outcome of the suit coupled with the court’s cautionary instructions in that regard do not illustrate any prejudice to defendant which would outweigh the relevance of the testimony.

The effort to avoid the consequences of the pleas is meritless, and the jury’s verdict as reduced to judgment is affirmed.

Judgment affirmed.

McMurray, P. J., and Sognier, J., concur.


text:
    74535.
    HOWARD v. AMERICAN BUSINESS EQUIPMENT OF COLUMBUS, INC.
    (362 SE2d 127)
   Carley, Judge.

Appellant-plaintiff purchased a copier from appellee-defendant, making a part payment of the purchase price and financing the balance. Subsequently, appellant filed suit, alleging that appellee had made fraudulent representations in connection with its sale of the copier. Appellant sought the return of her payments, incidental, general and punitive damages, attorney’s fees and interest. Appellee answered and also filed a counterclaim for the unpaid balance owed on the copier. After a period of discovery, appellee moved for summary judgment on appellant’s claim. The trial court granted summary judgment in favor of appellee and ordered dismissal of appellant’s complaint. Appellant appeals from the trial court’s order dismissing her complaint and granting summary judgment to appellee.

1. This case arises out of a complex series of transactions relating to appellant’s purchase of a copier from appellee. It would serve no useful purpose to recite the factual details, as they are unlikely to arise again. While there are certain factual differences between this case and W. M. Hobbs, Ltd. v. Accusystems of Ga., 177 Ga. App. 432 (339 SE2d 646) (1986), our holding in that case is controlling here. Under the evidence, appellant reaccepted the copier after she had allegedly rejected it. Accordingly, appellant has no right to secure the return of the purchase price. Appellant had use of the copier for a significant trial approval period. Accordingly, she has no claim for breach of implied warranties. The trial court did not err in granting summary judgment to appellee as to those issues.

Decided October 16, 1987.

Lee R. Grogan, for appellant.

William H. Young III, for appellee.

2. Appellant’s complaint also alleged fraud on the part of appellee. By its motion for summary judgment, appellee pierced the allegations of fraud that were contained in appellant’s complaint. Appellant’s affidavit in opposition to appellee’s motion for summary judgment did not set forth facts sufficient to support a claim for fraud against appellee. The misrepresentations attributed to appellee by appellant, in both her complaint and in her affidavit in opposition to the motion for summary judgment, amount to nothing more than mere expressions of opinion and sales’ puffing or dealer’s talk. See generally Terhune v. Coker & Co., 107 Ga. 352 (33 SE 394) (1899); Marler v. Dancing Water Lakes, 167 Ga. App. 99 (1) (305 SE2d 876) (1983); Randall v. Smith, 136 Ga. App. 823, 825 (222 SE2d 664) (1975). The trial court did not err in granting appellee’s motion for summary judgment as to the issue of fraud. See Plunkett v. Avery, 134 Ga. App. 204 (213 SE2d 503) (1975).

Judgment affirmed.

Banke, P. J., and Benham, J., concur.


text:
    74553.
    TAYLOR v. CAREER CONCEPTS, INC.
    (362 SE2d 128)
   Carley, Judge.

Appellant-defendant, a Houston County resident, entered into a written contract, agreeing to pay a placement fee to appellee-plaintiff if it found him employment. Several months later, a job opening arose at Gandy’s Industries, Inc. (Gandy’s), a Bibb County corporation. Appellee contacted appellant about the job opening and eventually appellant was hired to fill the position at Gandy’s. When payment of its placement fee was not forthcoming, appellee brought this suit in Bibb County, naming both Gandy’s and appellant as defendants. In its complaint, appellee alleged that Gandy’s and appellant were jointly and severally liable for the placement fee and were subject to the jurisdiction of the Bibb County court. In his answer, appellant admitted entering into the written contract with appellee but contended that “he contracted only for job placement with employers who would pay the placement fee to [appellee].” Appellant also denied the allegation that he was subject to the jurisdiction of the Bibb County court.

Subsequently, Gandy’s moved for summary judgment and its motion was granted. Appellee then moved for summary judgment as against appellant. The trial court conducted a hearing on the motion. At the hearing, appellant appeared and apparently defended against the motion on the merits. After the hearing, the trial court granted appellee’s motion for summary judgment and appellant appeals from that order.

1. Contending that the Bibb County court did not have jurisdiction over him, appellant enumerates as error the trial court’s entry of any judgment in the case.

It is undisputed that appellant was a resident of Houston County and that Gandy’s was a resident of Bibb County. In its complaint, however, appellee had alleged that appellant and Gandy’s were joint obligors. “Suits against joint obligors . . . residing in different counties may be tried in either county.” Ga. Const, of 1983, Art. VI, Sec. II, Par. IV. Accordingly, appellant’s denial in his answer that he was subject to the jurisdiction of the Bibb County court was without merit. At that time, venue was proper in Bibb County as the residence of appellant’s alleged joint obligor. “The only time the defense of lack of jurisdiction over the person of the nonresident [defendant] because of [his] nonresidency would be valid ... is in the event of a judgment in favor of the resident joint defendant. . . . [Cit.]” Lansky v. Goldstein, 136 Ga. App. 607, 608 (2) (222 SE2d 62) (1975). Thus, it was only when summary judgment was subsequently granted in favor of Gandy’s that venue in Bibb County became improper as against appellant. “[Although suits against . . . joint obligors . . . may be brought in the county of the residence of any, if no judgment is taken against a resident defendant, the court loses venue as to the nonresident [defendant] unless the issue of venue is waived.” (Emphasis supplied.) Timberlake Grocery Co. v. Cartwright, 146 Ga. App. 746, 747 (247 SE2d 567) (1978). Accordingly, the issue for determination is whether, subsequent to the grant of summary judgment in favor of Gandy’s, appellant waived his venue defense.

In Maddox v. Brooks, 17 Ga. App. 644 (87 SE 911) (1916), this court held “that if upon the trial of ... a joint action the plaintiff fails to prove a joint undertaking, and dismisses as to the resident defendant, the other defendant may still, prior to verdict, raise . . . the question of lack of jurisdiction. . . .” (Emphasis supplied.) After the trial court granted summary judgment in favor of Gandy’s, appellee’s action against appellant did not proceed to a trial and verdict. It did, however, proceed to the trial court’s consideration of appellee’s motion for summary judgment. Prior to the trial court’s grant of appellee’s motion for summary judgment, appellant never raised improper venue as a defense. “A party against whom summary judgment has been granted is in the same position as if he suffered a verdict against him. [Cits.]” Summer-Minter & Assoc. v. Giordano, 231 Ga. 601, 604 (203 SE2d 173) (1974). Accordingly, appellant’s failure to object to improper venue prior to the entry of the trial court’s order was, in effect, a failure to raise the defense prior to suffering a verdict against him. By doing so, appellant waived any venue defense he possessed. This enumeration is without merit.

2. Appellant urges that the written contract is ambiguous and that the question of whether, under its terms, he was obligated to pay the placement fee to appellee should have been submitted to a jury.

One section of the contract provided that, upon appellant’s acceptance of employment as a result of a referral from appellee, he agreed to pay the placement fee. Another section of the contract provided that, if appellant worked for the employer for more than ten weeks and the employer paid a fee to appellee, then appellant would not be liable to appellee for the fee. “[W]here no dispute of fact is involved, the construction of a plain and definite contract, if needed, is a matter of law for the court; a contract is not ambiguous even though difficult to construe, unless and until an application of the pertinent rules of interpretation leaves it uncertain as to which of two or more possible meanings represents the true intention of the parties. [Cit.]” Pisano v. Security Mgt. Co., 148 Ga. App. 567, 568 (251 SE2d 798) (1978). “The construction which will uphold a contract in whole and in every part is to be preferred, and the whole contract should be looked to in arriving at the construction of any part.” OCGA § 13-2-2 (4). Construing the contract in the case at bar as a whole, appellant’s obligation to pay the placement fee to appellee was subject to a condition subsequent. Appellant was liable for the fee unless a fee had been paid to appellee by the employer. The two sections of the contract are neither inconsistent nor ambiguous. Therefore, construction of the contract was a matter for the court rather than for a jury. See generally Gulbenkian v. Patcraft Mills, 104 Ga. App. 102 (121 SE2d 179) (1961). This enumeration is without merit.

3. Appellant urges that the trial court erroneously failed to consider evidence of an alleged separate oral agreement. According to appellant, he had a separate oral agreement whereby appellee would not refer him to any employer who would not pay the placement fee. “Parol testimony may be admitted ... to show a distinct collateral understanding, although it may not contradict or vary the writing itself. [Cit.]” Tanner v. Tinsley, 152 Ga. App. 330, 331 (262 SE2d 602) (1979). “ ‘The test to determine whether the oral agreement is one which the law will permit to be [pled] and [proven] is whether the oral agreement constitutes a part of the written contract or whether, instead, it is a separate and distinct oral contract which is not inconsistent with the written contract. If the latter, it admits of pleading and proof. [Cits.]’ [Cit.]” Diamondhead Corp. v. Robinson, 144 Ga. App. 60, 62 (240 SE2d 572) (1977). Appellant’s alleged oral agreement would vary the terms of the written contract, in effect negating any obligation on the part of appellant to pay appellee a placement fee.

Decided October 16, 1987.

George C. Oetter, Jr., for appellant.

William D. Gifford, for appellee.

4. Under the written agreement, appellant was required to pay appellee a placement fee subject only to the condition subsequent that Gandy’s had paid a fee to appellee. Since Gandy’s had paid no fee to appellee, the trial court did not err in granting summary judgment in favor of appellee. Remaining enumerations not otherwise addressed have been considered and have been found to be without merit.

Judgment affirmed.

Banke, P. J., and Benham, J., concur.


author: Carley, Judge. Banke, Presiding Judge,

text:
    74851.
    LANHAM v. THE STATE.
    (362 SE2d 131)
   Carley, Judge.

Appellant was indicted for the offense of entering an automobile, a violation of OCGA § 16-8-18. He was tried before a jury and a verdict of guilty was returned. Appellant’s motion for new trial was denied and he appeals from the judgment of conviction and sentence entered on the jury’s guilty verdict.

1. The trial court’s failure to grant appellant’s motion for new trial on the general grounds is enumerated as error. Appellant was a witness in his own defense and denied his guilt. However, when the evidence is viewed in a light most favorable to the verdict, it is more than sufficient to authorize a rational trior of fact to find proof of appellant’s guilt beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). See also Hall v. State, 172 Ga. App. 371 (323 SE2d 261) (1984); Shorter v. State, 169 Ga. App. 804 (315 SE2d 35) (1984).

2. When he was arrested within minutes of the commission of the offense, appellant had no identification on his person. Prior to being given the Miranda warnings, appellant was asked to give his name to the arresting officer. This inquiry was repeated several times before appellant revealed that his first name was “Robert.” Appellant was then asked several times to give his last name. On each occasion, appellant merely responded that his name was “Robert.” The officer then informed appellant that he would be called “Robert Doe.” Appellant’s response was: “[T]hat sounds good, Robert Doe.” At trial, the assistant district attorney apparently referred to this colloquy in his opening statement. Appellant moved for a mistrial, contending that the reference to this colloquy had constituted an impermissible comment on his right to remain silent. The motion for mistrial was denied and no curative instructions were given, the trial court ruling that the colloquy between the officer and appellant would be admissible into evidence. During the State’s case-in-chief, the trial court, over appellant’s objection, did subsequently admit the colloquy into evidence. On appeal, appellant enumerates as error the denial of his motion for mistrial.

The silence of an arrestee prior to his receipt of the Miranda warnings may be used by the State for purposes of impeachment. See Bennett v. State, 254 Ga. 162, 165 (4) (326 SE2d 438) (1985). In this case, however, the State did not use the evidence of appellant’s silence for impeachment purposes. The evidence was introduced in the State’s case-in-chief. Appellant cites Howard v. State, 237 Ga. 471, 473 (228 SE2d 860) (1976), as authority for the proposition that the State is precluded from using an arrestee’s silence in its case-in-chief regardless of whether or not the Miranda warnings had been given prior to that silence: “The right to remain silent when under police interrogation existed prior to Miranda, which dealt with the requirement of giving notice of that right. The defendant [in Howard, supra,] had the constitutional right to remain silent, whether or not he had been so informed via the Miranda warning.” (Emphasis supplied.) However, unlike the defendant in Howard v. State, supra, appellant’s silence prior to his receipt of the Miranda warnings was not silence in response to police interrogation. Although asked in a custodial setting, the arresting officer’s request for appellant’s name was not custodial interrogation. See White v. State, 168 Ga. App. 794, 796 (310 SE2d 540) (1983). See also OCGA § 17-4-27, which provides that the police have a duty to obtain the vital statistics of those whom they arrest.

We are aware of no case which unequivocally holds that the State may not introduce, in its case-in-chief, evidence that, immediately upon his arrest but prior to being given his Miranda warnings, the arrestee refused to respond to the non-interrogative request to supply his name. Arguably, such evidence should be admissible as a circumstance of the arrest. “[A] 11 circumstances connected with the arrest of the defendant are admissible and may be weighed by the jury for whatever they are worth. [Cit.]” Phillips v. State, 165 Ga. App. 235, 237 (2) (299 SE2d 138) (1983). However, assuming without deciding that such evidence would be inadmissible, appellant would still have to show that any error was, under the circumstances of this case, harmful to him. A showing of error without harm will not warrant a reversal of appellant’s conviction. Here, as in Durden v. State, 250 Ga. 325, 328 (4) (297 SE2d 237) (1982), any error committed in connection with the topic of appellant’s post-arrest silence would be harmless: “Because of the overwhelming evidence linking [appellant] with this crime, the error [, if any,] is harmless beyond a reasonable doubt. . . .” See also Sanford v. State, 153 Ga. App. 541 (1) (265 SE2d 868) (1980). Accordingly, the trial court’s failure to take curative action in response to the State’s opening statement, if error, was not reversible.

Decided October 16, 1987.

Carl Greenberg, for appellant.

Robert E. Wilson, District Attorney, Robert E. Statham III, Barbara Conroy, Assistant District Attorneys, for appellee.

Judgment affirmed.

Benham, J., concurs. Banke, P. J., concurs specially.

Banke, Presiding Judge,

concurring specially.

I would hold unequivocally that evidence of an arrestee’s refusal to respond to the arresting officer’s routine request to state his name is not an impermissible comment on his right to remain silent but is clearly admissible as a circumstance of the arrest.


author: Benham, Judge.

text:
    74937.
    LEDFORD v. THE STATE.
    (362 SE2d 133)
   Benham, Judge.

Appellant was found guilty in a bench trial of violating the bad check statute (OCGA § 16-9-20). On appeal he maintains the evidence presented at trial was insufficient to support the conviction.

“A person commits the offense of criminal issuance of a bad check when he makes, draws, utters, or delivers a check, draft, or order for the payment of money on any bank or other depository in exchange for a present consideration or wages, knowing that it will not be honored by the drawee.” OCGA § 16-9-20 (a). The State presented evidence that appellant, acting on behalf of Tailored Carpet Mills (Tailored Carpet), signed a check issued on a Tailored Carpet account and made out to Kenco Mills for $14,353.94, which check was returned due to insufficient funds. There was evidence that the check was given to Kenco Mills on April 18, 1985, one day after a dyer working for Tailored Carpet had picked up the griege goods from Kenco Mills’ agent.

1. Appellant contends his conviction must be reversed because there is no evidence that the check was given in exchange for a present consideration. “[P]resent consideration is an essential element of the crime here involved . . .” Bowers v. State, 248 Ga. 714, 715 (285 SE2d 702) (1982). “Present consideration in this context means that the check must be in exchange for something of value [Cit.] The law requires a contemporaneous transaction because the payee must give up something of value in reliance on the check in question. [Cit.]” Griffith v. State, 249 Ga. 19, 20 (287 SE2d 187) (1982). Where a worthless check is given as payment for goods already received, there is no present consideration, and a conviction for criminal issuance of a bad check must be reversed (see Griffith v. State, supra; Bowers v. State, supra; Marchman v. State, 173 Ga. App. 257 (325 SE2d 879) (1985); Brooks v. State, 146 Ga. App. 626 (2) (247 SE2d 209) (1978)), unless “the interval [between delivery of goods or services and payment therefor] is slight and the exchange can be characterized as a single contemporaneous transaction.” Bowers v. State, supra at 715. While the Supreme Court exemplified “single contemporaneous transaction” as a situation where “one delivers goods or services to the purchaser’s home or business at the purchaser’s request, [and] returns a short time later and is given a check in payment . . .” (id. n. 1), this court has held that completion of work late Friday afternoon and payment therefor on the following Monday constitutes a “single contemporaneous transaction.” Gilley v. State, 182 Ga. App. 681 (1) (356 SE2d 655) (1987). In the same case, this court also held that completion of work, coupled with an immediate request for payment, an agreement to pay in two days, and receipt of payment approximately two weeks after the completion of the work constituted a “single contemporaneous transaction.” Id. In light of the precedent established in Gilley, we conclude that a rational trier of fact could have found the requisite “present consideration” to have existed beyond a reasonable doubt where goods were given on April 17 and payment received on April 18. Compare Griffith v. State, supra; Bowers v. State, supra; Marchman v. State, supra; Brooks v. State, supra. See also Parish v. State, 178 Ga. App. 177 (4) (342 SE2d 360) (1986). The fact that appellant’s business had an ongoing relationship with the entity that received the worthless check does not preclude the existence of a single contemporaneous transaction. See Hiers v. State, 182 Ga. App. 743 (356 SE2d 763) (1987).

Decided October 16, 1987.

E. Crawford McDonald, Nancy E. Bradshaw, for appellant.

Jack O. Partain III, District Attorney, Ralph M. Hinman III, Steven M. Harrison, Assistant District Attorneys, for appellee.

2. Appellant also takes issue with the fact finder’s conclusion that appellant issued the bad check knowing that it would not be honored. Despite the fact that there is no evidence whether the notice provisions of OCGA § 16-9-20 (a) (2) were followed, the fact finder may find other evidence in the record that establishes guilty knowledge on the part of the defendant. Russell v. State, 155 Ga. App. 555 (1) (271 SE2d 689) (1980). In the case at bar, the State had admitted into evidence the bank statements of Tailored Carpet from March 18 through April 30,1985. The balance at the beginning of that period of time was overdrawn over $25,000 and closed with an overdrawn balance of over $11,000. During that time, the account was charged 198 times for checks written with insufficient funds, and the account was debited over $271,000 for checks deposited to the account that the bank was not able to collect. The account’s daily balance from March 25, 1985 through April 27, 1985, was never sufficient to cover the $14,353.94 check issued April 18 that serves as the basis for the criminal charge against appellant. Additionally, appellant admitted that he knew at the time he made several deposits to Tailored Carpet’s account that the deposits would be bad. There was sufficient evidence for a rational trier of fact to conclude beyond a reasonable doubt that appellant knew that the check issued to Kenco Mills would not be honored. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). See also Gilley v. State, supra.

Judgment affirmed.

Banke, P. J., and Carley, J., concur.


text:
    75024.
    WALKER v. THE STATE.
    (362 SE2d 135)
   Benham, Judge.

This appeal is from appellant’s conviction for possession of cocaine and diazepam based on evidence seized in a search of appellant’s residence.

1. Appellant’s first enumeration of error is directed to two instances in which the trial court denied motions for mistrial. The first motion came when a prosecution witness being questioned about the search of appellant’s residence stated that the warrant was procured after a “controlled buy” had been made. Appellant sought a mistrial on the ground that his character had been put in issue by evidence of uncharged misconduct. Considering the fact that appellant was not mentioned by name and that he declined the trial court’s offer of curative instructions, we find no abuse of the trial court’s broad discretion in the area of motions for mistrial. Griggs v. State, 181 Ga. App. 618 (2) (353 SE2d 97) (1987).

The second motion was prompted by the prosecuting attorney’s remark during closing argument that appellant was engaged in selling drugs. Given that “ ‘each side is permitted to make any argument which is reasonably suggested by the evidence. . . .’ [Cits.]” (Wilson v. State, 181 Ga. App. 435 (3) (352 SE2d 618) (1987)), and that there was evidence concerning drug trafficking paraphernalia found during the search of appellant’s residence, there was no error in denying the motion for mistrial. Id.

2. The search of appellant’s residence was made pursuant to a warrant. In his second enumeration of error, appellant contends that the description in the warrant was insufficient. We disagree.

The evidence at the hearing on the motion to suppress established that the circumstances of the search in this case were closely analogous to those in Chambless v. State, 165 Ga. App. 194 (1) (300 SE2d 210) (1983). Here, as there, any inaccuracies in the street address were made up for by the thoroughness of the rest of the description. “The importance of exactitude of street address, it may be said, varies inversely with the thoroughness of the description.” Id. The testimony of the officer who procured the warrant and executed it established that when the directions on the warrant were followed, the description was adequate to lead any officer executing the warrant to appellant’s residence. Appellant relies heavily on the difficulty the officer had at trial in distinguishing between photographs of two mobile homes, one being appellant’s and the other being located nearby. However, the difficulty evaporated when the officer realized that the photos had been taken from the rear of the homes, which hid the distinguishing feature of shutters on appellant’s residence which was not present on the front of the other residence. The shutters were used on the warrant as an item in the description. We find no error in the denial of appellant’s motion to suppress.

3. Appellant’s final enumeration of error is directed at the trial court’s admission into evidence of a receipt from a rental company showing appellant’s name as the customer. The receipt was part of an exhibit consisting of drug paraphernalia found in a shoe box in a bedroom during the search of appellant’s residence. The objection made at trial was that the receipt was hearsay and was not authenticated.

On appeal, appellant argues the authentication issue by reference to OCGA § 24-7-1. Since that section applies only where the contents of a missing document are in issue (Springer v. State, 238 Ga. 81 (1) (230 SE2d 883) (1976)), it is inapplicable here. The contents of the document were not in question, and it was not missing. Appellant has not shown any necessity that the document be authenticated in any fashion, and we perceive none.

Decided October 16, 1987.

W. Ralph Hill, Jr., Clifton M. Patty, Jr., Ralph L. Van Pelt, Jr., for appellant.

David L. Lomenick, Jr., District Attorney, David J. Dunn, Assistant District Attorney, for appellee.

The hearsay argument is equally unavailing and for essentially the same reason: the rule is inapplicable. The receipt was not offered as proof of what was asserted therein, that appellant had rented something, but as evidence that a piece of paper with appellant’s name on it was included in the same container with items of drug paraphernalia. “ ‘As a fundamental rule, the definition of hearsay does not include out-of-court statements which are not offered as proof of the facts asserted in such statement, but are offered merely as proof that such a statement was made. Assuming that the proof is limited to merely showing that the statement was made and not as evidence of the truth of the fact asserted in the statement, the statement is admissible as original evidence and does not concern the hearsay rule.’ [Cits.]” A Child’s World v. Lane, 171 Ga. App. 438 (2) (319 SE2d 898) (1984).

Judgment affirmed.

Banke, P. J., and Carley, J., concur.