author: Per curiam. Deen, Presiding Judge, McMurray, Presiding Judge,

text:
    75793.
    WALLACE v. THE STATE.
    (371 SE2d 914)
   Per curiam.

Defendant was indicted for the offenses of murder, aggravated assault, theft of a motor vehicle and driving under the influence of alcohol. The evidence at trial on June 1, 2, 3 and 4, 1987, was as follows:

Sometime around midnight on May 16,1979, Officers Tom Rowry and Mike Cook of the Union Point, Georgia Police Department began following defendant in their patrol car after they observed defendant making an unusual “wide turn” near “downtown Union Point.” After the officers observed defendant’s car “run off the road several times and [cross] over into the opposite lane several times,” they “turned on the blue lights.” However, defendant did not stop his vehicle until he “went approximately a quarter of a mile. . . .” After the stop, Officer Cook smelled alcohol on defendant’s breath and administered a field test which indicated that defendant had been drinking alcohol. The officers then transported defendant “to the Union Point City Hall for [an] intoximeter test that would give . . . the level of alcohol . . . which [defendant] had consumed.”

“At City Hall,” Officer Rowry administered a breath test which indicated that defendant had an .11 percent blood alcohol content. Defendant was charged with “DUI” and advised that he would be held in police custody “for just a minimum of four hours, or until he could make bond.” Defendant then asked Officer Cook “if [they] could give him a break on the DUI.” Officer Cook advised defendant that “[they] did not give breaks on DUI tests when anybody went over the legal limit of alcohol.” At this point, a struggle ensued. Officer Rowry received a fatal gunshot wound and Officer Cook was shot in the abdomen. Defendant fled in a Union Point patrol car and was later apprehended in Atlanta, Georgia. The jury found defendant not guilty of murder, not guilty of aggravated assault, guilty of motor vehicle theft and guilty of driving under the influence of alcohol. Defendant was then sentenced to serve eight consecutive years. This appeal followed. Held:

1. Defendant first contends the trial court erred in charging the jury on motor vehicle theft: “ ‘It shall be unlawful for anyone to steal a motor vehicle.’ ” Defendant argues that this charge on motor vehicle theft was incomplete as the crime comprises the intention of depriving the owner of the motor vehicle and that this omission was harmful because his defense was that he took the Union Point police car in order to escape further assault from Union Point police officers, not with the intention of depriving the owner of its property. See Martin v. State, 143 Ga. App. 875 (1) (240 SE2d 231).

Earlier in the jury charge, the trial court fully instructed the jury on the necessity of finding intent, the element to which this defense pertains. Further, defendant did not request the trial court to charge this defense in detail and, in the absence of such a request, “the court had no duty to do so. Darby v. State, 79 Ga. 63 (8) (3 SE 663); Hayden v. State, 69 Ga. 731 (3); Burgess v. State, 210 Ga. 91 (78 SE2d 33).” Wilson v. State, 124 Ga. App. 403 (183 SE2d 926). Consequently, the trial court “fulfilled its duty to ‘charge upon the general principles covering the facts of the case’ . . . Spivey v. State, 59 Ga. App. 380, 382 (1 SE2d 60).” Wilson v. State, 124 Ga. App. 403, supra. Considering the charge as a whole, we find no error which requires reversal. August v. State, 180 Ga. App. 510 (3) (349 SE2d 532). Consequently, defendant’s conviction of the offense of theft of a motor vehicle is affirmed.

2. In his second enumeration of error, defendant contends the trial court erred in failing to charge the jury that it could recommend that defendant be punished as for a misdemeanor. “This enumeration is totally without merit. The trial judge now sets the punishment and determines the sentence. Code Ann. § 27-2301, as amended (Ga. L. 1974, p. 352) [now OCGA § 17-9-2]; Code Ann. § 27-2503 (a) (Ga. L. 1974, pp. 352, 357) [now OCGA § 17-10-2]. Therefore, the court was not required to charge the jury that portion of § 26-1813[, repealed by Ga. L. 1981, p. 1576,] which permits the jury to recommend misdemeanor punishment. See Stanley v. State, 136 Ga. App. 385 (221 SE2d 242) (1975). Winslow v. State, 135 Ga. App. 773 (219 SE2d 21) (1975).” Favors v. State, 145 Ga. App. 864, 868 (5) (244 SE2d 902).

3. Next, defendant contends the trial court’s charge to the jury that “[a] person shall not drive or be in actual physical control of any moving vehicle while under the influence of alcohol” was harmfully incomplete, because it did not inform the jury that being under the influence of alcohol meant that consumption of alcohol had rendered him a less safe driver. We agree. “[T]he trial court should have so defined the term, ‘under the influence.’ See Turner v. State, 95 Ga. App. 157, 158 (97 SE2d 348) (1957). See also Smitherman v. State, 157 Ga. App. 526 (278 SE2d 107) (1981); and Anderson v. State, 226 Ga. 35 (172 SE2d 424) (1970).” Taylor v. State, 184 Ga. App. 368, 369 (2) (361 SE2d 667).

4. In his fifth enumeration of error, defendant contends the trial court erred in admitting evidence of the results of his intoximeter test because the State failed to establish a proper foundation by showing “that the [intoximeter] machine had . . . been properly checked by the Department of Public Safety” and that Officer Rowry “had a permit to operate the [intoximeter].”

At the time defendant was tested, “Rule 570-9-.06 (6) of the rules of the Department of Public Safety provided in part that: ‘All breath tests other than the original screening test will be conducted on a photo-electric intoximeter or breath analyzer of a design specifically approved by the Director, State Crime- Laboratory.’ ” Clarke v. State, 170 Ga. App. 852, 853 (319 SE2d 16). Further, these rules required that a person operating the approved intoximeter machine be certified by the State to operate it. See Smitherman v. State, 153 Ga. App. 322 (265 SE2d 119).

After reviewing the record, we conclude that the State did lay a foundation sufficient to support the admission of the test results, since there was proof that both the machine and the operator were certified by the State. Officer Cook testified to the effect that the machine used to perform the test was a “federal [photo] electric intoximeter” and that he believed there was a permit for the machine from the Department of Public Safety; that Officer Rowry had recently been to intoximeter school and had “a current certificate” to run the intoximeter; that he observed Rowry putting an ampule into the machine, checking the ampules on that particular machine, checking and screening the galvanometer, and bringing the galvanometer back to the null point of zero. The testimony that Rowry was certified at that time to perform tests on the machine upon which appellant was tested was sufficient to prove that the machine used for the test was an approved machine. “Since the director issued the permit for the operation of this particular machine, it may be inferred that its design was specifically approved by him. Accordingly, the results of the test were admissible. [Cits.]” Clarke v. State, supra at 853. See also Stewart v. State, 165 Ga. App. 62, 63 (299 SE2d 134) (1983). The trial court did not err in admitting the evidence.

5. In his sixth enumeration of error, defendant contends the evidence was insufficient to support his conviction for driving under the influence of alcohol and, in this regard, defendant argues in his fourth enumeration of error that the trial court erred in failing to grant his motion for directed verdict of acquittal. We do not agree. The evidence, showing that defendant made an unusual “wide turn” in the road, was observed to “run off the road several times and [cross] over into the opposite lane several times,” failed to immediately stop his vehicle when summoned by police officers, that defendant smelled of alcohol at the time he was stopped and that defendant failed the field test for the consumption of alcohol, was sufficient to enable a rational trier of fact to find defendant guilty beyond a reasonable doubt of driving while under the influence of alcohol to the extent that he was a less safe driver. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560); Collins v. State, 177 Ga. App. 758, 759 (2) (341 SE2d 288). For these reasons, the trial court did not err in denying defendant’s motion for directed verdict of acquittal. Humphrey v. State, 252 Ga. App. 525, 526 (1) (314 SE2d 436).

Judgment affirmed in part and reversed in part.

Birdsong, C. J., Pope and Benham, JJ., concur. Deen, P. J., McMurray, P. J., Banke, P. J., Carley, Sognier and Beasley, JJ., concur in part and dissent in part.

Deen, Presiding Judge,

concurring in part and dissenting in part.

While concurring fully with Divisions 1, 2, 4, and 5 of the per curiam opinion, I must dissent from Division 3. Under the facts of this case, it was unnecessary to define “under the influence” as meaning that Wallace was a less safe driver because of his alcohol consumption.

The trial court instructed the jury that “[a] person shall not drive or be in actual physical control of any moving vehicle while under the influence of alcohol.” The trial court also charged the jury that if chemical analysis of a person’s blood shows that “there was at that time 0.10% or more by weight of alcohol in the person’s blood, it shall be presumed that the person was under the influence of alcohol.” Wallace’s blood alcohol content was shown to be .11 percent, and the trial court’s instructions on driving under the influence thus were exactly adjusted to the evidence.

The per curiam opinion misplaces its reliance upon Taylor v. State, 184 Ga. App. 368, 369 (2) (361 SE2d 667) (1987), and the cases cited therein, because it does not appear that any of those cases involved a situation where a chemical analysis revealed the driver’s blood alcohol content to be at a level where one is presumed by law to be “under the influence.” Where the State obtains no chemical analysis of the driver’s blood, or one that indicates a blood alcohol content of less than the presumptive level, a definition of “under the influence” as meaning “less safe” would be necessary, but no such need exists where the State’s evidence travels on the unrebutted presumption of being “under the influence” arising by virtue of a certain blood alcohol content.

Decided July 15, 1988

Rehearing denied July 28, 1988

Robert E. Surrency, H. Samuel Atkins, Jr., for appellant.

Joseph H. Briley, District Attorney, for appellee.

The appellant’s convictions should be affirmed entirely.

I am authorized to state that Judge Beasley joins in this opinion.

McMurray, Presiding Judge,

concurring in part and dissenting in part.

I fully concur in all that is said in Divisions 1, 2, 3 and 5 of the majority opinion, and the judgment. However, I respectfully dissent with regard to Division 4 as I do not agree that the trial court properly admitted the results of defendant’s intoximeter test.

In the case sub judice, Officer Cook testified that Officer Rowry was “certified” to operate the “machine” that was used to test defendant’s breath and that “there was a certificate with Officer Rowry’s name on the wall . . . where we ran the intoximeter.” However, Officer Cook failed to testify that the certificate was issued by the Department of Public Safety or that Officer Rowry was certified by the State to operate the intoximeter machine. In fact, on cross-examination Officer Cook affirmed that he did not “know if [the intoximeter machine] had a permit. ...” This testimony was insufficient to establish a proper foundation for introduction into evidence of the results of defendant’s breath test. See Willoughby v. State, 153 Ga. App. 434, 435 (1) (265 SE2d 352). Compare Stewart v. State, 165 Ga. App. 62, 63 (2, 3) (299 SE2d 134).

I am authorized to state that Presiding Judge Banke, Judge Carley and Judge Sognier join in this opinion.

       Defendant was previously convicted in February 1980 for murder, aggravated assault, motor vehicle theft and driving under the influence of alcohol and was sentenced to death for the murder and 28 consecutive years in confinement for the other offenses. The Supreme Court of Georgia affirmed defendant’s convictions and sentences in Wallace v. State, 248 Ga. 255 (282 SE2d 325), and, upon defendant’s writ of habeas corpus, “[t]he United States District Court for the Middle District of Georgia, 581 FSupp. 1471, Owens, J., granted the writ, finding constitutional infirmities in [the] prosecutor’s closing argument, but denied it on [the] remaining grounds, and appeals were taken. The [United States] Court of Appeals, Albert J. Henderson, Circuit Judge, [reversed and remanded] holding that [the] evidence was insufficient to sustain [the] finding that defendant was competent to stand trial, and thus, defendant was denied due process of law.” Wallace v. Kemp, 757 F2d 1102 (11th Cir. 1985).


source: Caselaw Access Project

author: Benham, Judge. Pope, Judge,

license: Public Domain

text:
    75833, 75834.
    SELF v. CITY OF ATLANTA et al. (two cases).
    (372 SE2d 283)
   Benham, Judge.

Appellant Self was injured when the vehicle he was driving collided with a truck owned by appellee City of Atlanta and operated by its employee. Appellant filed suit against the city, alleging that it was negligent and had fostered a nuisance. Appellee asserted the defense of sovereign immunity and, after admitting that it had insurance coverage of $1,000 per incident, admitted appellant’s allegation of negligence. The trial court then entered judgment in favor of appellant in the amount of $1,000. Appellant filed a direct appeal from the judgment entered (Case No. 75833) as well as an application for leave to file a discretionary appeal. We granted appellant’s application (Case No. 75834).

1. Inasmuch as these appeals are from a judgment of less than $2,500 entered in an action for damages, appellant was required to seek discretionary review of the trial court’s action. OCGA § 5-6-35 (a) (6). Accordingly, appellant’s direct appeal (Case No. 75833) must be dismissed.

2. Appellant contends the trial court erred in holding that the city’s sovereign immunity had been waived only to the extent of its insurance coverage. Appellant maintains that the General Assembly of Georgia expressly waived the city’s sovereign immunity when it adopted the city’s present charter in 1973.

Through the passage of the new charter, the General Assembly empowered the City of Atlanta to “sue and be sued, and plead and be impleaded in all courts of law and equity and in all actions whatsoever. . . .” Ga. L. 1973, p. 2190. While we readily admit that the courts have relaxed the application of sovereign immunity as to quasi-government entities, Medical Center Hosp. Auth. v. Andrews, 250 Ga. 424 (1) (297 SE2d 28) (1982); Busbee v. Ga. Conference &c. of Univ. Professors, 235 Ga. 752 (1) (221 SE2d 437) (1975); Knowles v. Housing Auth. of Columbus, 212 Ga. 729 (95 SE2d 659) (1956); Marine Port Terminals v. Ga. Ports Auth., 180 Ga. App. 380, 381 (348 SE2d 896) (1986); State Hwy. Dept. v. W. L. Cobb Constr. Co., 111 Ga. App. 822 (143 SE2d 500) (1965) it is still vibrant as to governmental entities. Therefore, the trial court was correct in distinguishing those cases from the one at bar and in granting summary judgment to appellee.

3. Appellant contends the city is responsible for maintaining a nuisance, the operation of sludge trucks, Class IV vehicles, by employees who do not have Class IV driver’s licenses.

“To be held liable for maintenance of a nuisance, the municipality must be chargeable with performing a continuous or regularly repetitious act, or creating a continuous or regularly repetitious condition, which causes the hurt, inconvenience, or injury. . . .” Mayor &c. of Savannah v. Palmerio, 242 Ga. 419, 426 (249 SE2d 224) (1978). Appellant failed to show that improperly licensed drivers had caused vehicular collisions. The opinion of this court in City of Atlanta v. Whatley, 161 Ga. App. 705 (289 SE2d 541) (1982), cited by appellant, does not reflect that the driver was improperly licensed.

4. Lastly, appellant argues that the act of driving sludge, generally considered a governmental function, was, due to revenue generation, actually a ministerial function. Since there was no evidence that garbage fees were used for any purpose other than to offset garbage

collection expenses, the trial court did not err in granting summary judgment to the city. See City of Valdosta v. Bellew, 178 Ga. App. 423 (343 SE2d 111) (1986).

Appeal dismissed in Case No. 75833. Judgment affirmed in Case No. 75834. McMurray, P. J., and Pope, J., concur specially.

Pope, Judge,

concurring specially.

Although I agree with the holding reached by the majority in Division 2 of its opinion, I am compelled to write separately because of the majority’s failure to resolve the apparent inconsistency between the “sue and be sued” language contained in the city’s charter and the sovereign immunity which is granted to municipal corporations of this state.

As noted by the appellant, the phrase “sue and be sued,” or words of similar import, have been held to constitute an express waiver of sovereign or governmental immunity. As suggested by the majority, however, the cases relied on by appellant do not involve the interpretation of that phrase in connection with an alleged waiver of municipal immunity and are not dispositive of the issue presented by this case. I believe this issue can only be resolved by ascertaining the relevant constitutional, statutory and case law as it pertains to the particular entity under scrutiny.

Municipalities, as recognized by both statute and case law, have long enjoyed immunity from tort liability in the performance of legislative and judicial functions. McCrary Eng. Corp. v. City of Bowdon, 170 Ga. App. 462, 464-65 (317 SE2d 308) (1984). “In 1880 the Supreme Court of Georgia in Rivers v. City Council of Augusta, 65 Ga. 376 (38 AR 787), promulgated the doctrine whereby a municipal corporation was ruled to have no tort liability when acting in the performance of governmental functions as contrasted with conduct of ministerial or non-governmental duties. This common law doctrine was thereafter first codified as Section 748 in the Code of 1895 and subsequently carried forward as Section 897 in the Code of 1910 and in [the] Code of 1933 as Section 69-301.” Mitchell v. City of Newnan, 125 Ga. App. 761, 761-62 (188 SE2d 917) (1972).

At the time the action was filed in the present case, the provision granting sovereign immunity to municipal corporations was codified at OCGA § 36-33-1, which then provided as follows: “Municipal corporations shall not be liable for failure to perform, or for errors in performing, their legislative or judicial powers. For neglect to perform, or improper or unskillful performance of their ministerial duties, they shall be liable.” That language may presently be found at OCGA § 36-33-1 (b).

Decided July 14, 1988

Rehearing denied July 28, 1988

Patrick J. Fox, Billy E. Moore, for appellant.

Jo A. Crowder, Jan P. Cohen, Mary C. Cooney, Marva J. Brooks, for appellees.

This brief history demonstrates that from the outset it was recognized that a municipality may be liable for the negligent or improper performance of their ministerial duties. Likewise, it has been recognized that the doctrine of municipal immunity does not attach in connection with the operation and maintenance of a nuisance, see, e.g., Rainey v. City of East Point, 173 Ga. App. 893 (328 SE2d 567) (1985), and in actions concerning constitutional rights, such as eminent domain cases, see CFI Constr. Co. v. Bd. of Regents of the Univ. System, 145 Ga. App. 471 (4) (243 SE2d 700) (1978). In short, it has long been the rule that municipal corporations can sue and be sued. Mayor &c. of Athens v. Gregory, 231 Ga. 710 (3) (203 SE2d 507) (1974).

Accordingly, I believe the “sue and be sued” language found in the city’s charter simply refers to those situations in which, historically, the doctrine of municipal immunity has not been applied. In my opinion, such an “interpretation comports with the statutory language, the legislative intent and reason, and it works in tandem with [OCGA § 36-33-1 and the constitution of the state] and not in tension therewith.” DeKalb County School Dist. v. Bowden, 177 Ga. App. 296, 300 (339 SE2d 356) (1985).

I am authorized to state that Presiding Judge McMurray joins in this special concurrence.

         Although not applicable to litigation pending on July 1, 1986, OCGA § 36-33-1 was subsequently amended to provide as follows: “(a) Pursuant to Article IX, Section II, Paragraph IX of the Constitution of the State of Georgia, the General Assembly, except as provided in this Code section, declares it is the public policy of the State of Georgia that there is no waiver of the sovereign immunity of municipal corporations of the state and such municipal corporations shall be immune from liability for damages.” (Emphasis supplied). That section also provides that a municipality does not waive its immunity by the purchase of liability insurance, “except as provided in OCGA § 33-24-51, or unless the policy of insurance issued covers an occurrence for which the defense of sovereign immunity is available, and then only to the extent of the limits of such insurance policy.” Subsection (b) retained the language previously contained in OCGA § 36-33-1 (see text, supra).

      Although the legislature has constitutional authority to waive the immunity of municipalities pursuant to Article IX, Section II, Paragraph IX of the Georgia Constitution, I construe the “except as provided in this Code section,” language of OCGA § 36-33-1 to mean that should the legislature choose to exercise that authority, it will expressly so provide in the provisions of that section.


author: McMurray, Presiding Judge. Beasley, Judge, Benham, Judge,

text:
    76062.
    SCHMIDT v. THE STATE.
    (372 SE2d 440)
   McMurray, Presiding Judge.

Defendant was convicted of trafficking in cocaine and he appealed. Via four assignments of error, he challenges the trial court’s denial of his motion to suppress evidence.

The evidence adduced at the motion to suppress hearing, viewed in favor of the State, is summarized as follows: In the early morning hours of November 4,1986, Georgia State Trooper Ralston observed a 1986 Thunderbird with an Illinois license plate heading northbound on Interstate 75. The automobile was travelling at 64 m.p.h. (the speed limit was 55 m.p.h.) so Ralston stopped it. The time was 2:18 a.m.

Defendant exited the automobile and stepped to the rear. He was advised he had been speeding and was asked to produce a driver’s license and vehicle registration. Defendant gave Ralston a valid Illinois license; he also gave him a rental agreement for the Thunderbird.

Defendant told Ralston he was unemployed; that he was a college student in northern Illinois; and that he was returning from central Florida where he had gone to purchase an automobile. (Ralston testified that defendant told him he had been to Tampa and Orlando.) In this regard, defendant told Ralston that automobiles could be bought cheaper in Florida and that was why he went there.

Examining the rental agreement, Ralston observed that defendant rented the Thunderbird on October 29, 1986, and that was not the first automobile he had rented. He also noticed that the rental price of the automobile was $290 per week (plus 25 cents per mile after the first 200 miles per day) and that defendant put down a $300 cash deposit on the automobile.

Looking through the car windows, Ralston saw two road maps, a blanket and pillow, a small travelbag and fast food trash. He also observed a radar detector on the dash.

Ralston gave defendant a written warning for the speeding violation. He returned the driver’s license and rental agreement to defendant.

Defendant was asked if he would give his consent to a search of the automobile. Although he said he was in a hurry, defendant gave oral permission for a search. Then defendant signed a written consent to search form. The form was signed at 2:30 a.m.

Searching the automobile, Ralston obtained the road maps and found two motel bills. On the road maps, the route from Chicago to Miami was highlighted. One motel bill showed that defendant stayed in Miami from October 31 until November 3, 1986, and that defendant made more than 20 telephone calls to Chicago during his stay. The other motel bill showed that defendant was in Miami for two days during the previous summer and that he made several calls to Chicago at that time.

Ralston removed the key from the ignitioin and went to open the trunk. The ignition key did not fit and Ralston asked defendant for the key to the trunk. According to Ralston, defendant replied that he was given only one key by the rental agency.

Ralston testified that in his experience, whenever a suspect failed to produce a key to the trunk, narcotics were ultimately found. (See, e.g., Smith v. State, 184 Ga. App. 304, 306 (361 SE2d 215).) Accordingly, Ralston pressed on, indicating that he was going to remove the rear seat to search the trunk. Defendant objected, expressing concern about the taking apart of a rental automobile.

Ralston explained that he could remove the rear seat simply, in a matter of minutes. Nevertheless, defendant withdrew his consent to search. Then, Ralston advised defendant that he would have to be detained until the arrival of a drug dog and a magistrate. Because defendant was not dressed warmly, Ralston suggested that he wait in the patrol car. Defendant did so. In Ralston’s mind, defendant was no longer free to leave. The time was 2:45 a.m.

Approximately a half hour later, a drug dog and handler arrived. A magistrate was already on the scene. When the dog alerted, the magistrate executed a warrant to search the automobile. In short order, a large quantity of cocaine was discovered in the trunk. Held:

The fact that defendant was speeding authorized the initial stop by Ralston. Minor v. State, 180 Ga. App. 869, 870 (350 SE2d 783). The search of the interior of the rental automobile after the stop was performed legally pursuant to defendant’s voluntary consent. Smith v. State, 184 Ga. App. 304 (1), supra. When defendant revoked his consent, Ralston terminated the search as he was bound to do. See Conley v. State, 180 Ga. App. 662, 664 (350 SE2d 45). At that point, defendant was no longer free to leave. Was he justifiably detained or was he arrested?

In Radowick v. State, 145 Ga. App. 231, 237 (244 SE2d 346), the police received a lookout message for a truck with a camper on the back. When the vehicle was spotted, a police officer stopped it. Defendants were told they were suspected of transporting contraband and they were asked for permission to search the vehicle. Defendants did not say “yes,” and they did not say “no.” It was suggested that defendants wait in the patrol car. They were not free to leave. While defendants were detained, other officers arrived. They did not have a consent to search form. Finally, after defendants were detained over 40 minutes a consent to search form was secured and defendants executed it. On appeal, this court ruled that the detention of defendants went beyond the minimal intrusion authorized by Terry v. Ohio, 392 U. S. 1 (88 SC 1868, 20 LE2d 889), and amounted to an arrest.

In the case sub judice, defendant was detained for 30 minutes while the officer waited for the arrival of a drug dog and magistrate. During that period of time, defendant was not free to leave. As in Radowick v. State, 145 Ga. App. 231, supra, the detention of defendant constituted an arrest.

To say that the detention of defendant was a justifiable Terry stop stretches the imagination. After all, defendant had already been stopped and investigated. He produced identification, answered questions, and consented to a search of the interior of his automobile. Thus, the 30-minute detention of defendant by Raison constituted an arrest. Radowick v. State, 145 Ga. App. 231, supra.

The State principally relies upon United States v. Richards, 500 F2d 1025 (9th Cir. 1974), to support its contention that the detention of defendant did not constitute an arrest. In that case, the defendant consented to a search of his personal belongings on board an airplane suspected of being used to smuggle drugs. During the course of the search, a drug dog was called in. The dog alerted to marijuana and the defendant was arrested. Defendant was detained for an hour before his formal arrest. It was held that the defendant’s detention did not amount to an arrest.

Richards is inapplicable. At no point in time did Richards withdraw his consent to search. In the case sub judice, on the other hand, it is clear that defendant’s consent to search was withdrawn and that defendant was detained nevertheless.

“Detention beyond that authorized by Terry [Terry v. Ohio, 392 U. S. 1 (88 SC 1868, 20 LE2d 889)] is an arrest and, to be constitutional, such an arrest must be supported by probable cause. [Cit.]” Williams v. State, 251 Ga. 749, 792 (312 SE2d 40). Having determined that defendant was arrested after he withdrew his consent to search, we must decide whether Ralston had probable cause to make the arrest.

“A ‘warrantless arrest’ is constitutionally valid if, at the moment the arrest is made, the facts and circumstances within the knowledge of the arresting officers and of which they had reasonably trustworthy information were sufficient to warrant a prudent man in believing that the accused had committed or was committing an offense. [Cits.]” Callaway v. State, 257 Ga. 12, 13 (2), 14 (354 SE2d 118). See Quinn v. State, 132 Ga. App. 395, 396 (1) (208 SE2d 263). Thus, we look to the facts and circumstances to see if they warranted the conclusion that defendant was committing a crime at the moment he was arrested by Ralston. In so doing, we must bear in mind that probable cause concerns probabilities: “ ‘ . . . They are not technical; they are the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act.’ (Cit.)” Sanders v. State, 235 Ga. 425, 440 (219 SE2d 768).

Ralston knew that defendant was heading north after spending several days in Miami, a known drug source city; that he made a prior trip to Miami in the summer; that he made numerous calls from Miami to Chicago; and, most importantly, that he lied about his whereabouts. He also knew that certain statements made by defendant sounded fishy. Defendant said he was unemployed and that he was looking to purchase an automobile in Florida because they could be purchased cheaper there. Yet, defendant was driving an expensive rental automobile and he had rented an automobile previously. Defendant said he was a student. Yet, he was travelling at a time when students are usually in school and he was taking a week off to drive to Miami. Moreover, defendant’s statement that he was only given one key by the rental company was an obvious excuse to prevent Ralston from opening the trunk.

(At this juncture we note the State’s contention that probable cause is also supported by defendant’s withdrawal of consent at the moment when Ralston evidenced a willingness to remove the rear seat of the automobile. We decline to view the exercise of a constitutional right as a factor in determining probable cause. Accordingly, we have given no weight to the withdrawal of consent in making our probable cause determination.)

In our view, the particular facts and circumstances of the case sub judice were sufficient to establish probable cause for an arrest. Ralston was warranted in believing that defendant was transporting contraband in the trunk of the rental automobile. See Reid v. State, 179 Ga. App. 144 (345 SE2d 635). It follows that defendant was arrested legally and that the evidence subsequently seized was neither tainted nor inadmissible. See Still v. State, 149 Ga. App. 792 (256 SE2d 133). The trial court did not err in overruling defendant’s motion to suppress evidence.

Judgment affirmed.

Been, P. J., Banke, P. J., and Pope, J., concur. Beasley, J., concurs specially. Birdsong, C. J., Parley, Sognier and Benham, JJ., dissent.

Beasley, Judge,

concurring specially.

I agree that the officer did not offend the Federal Constitution by further detaining the defendant for a short time to await the dog. United States v. Sharpe, 470 U. S. 675 (105 SC 1568, 84 LE2d 605) (1985). The investigatory purpose of this brief restriction of defendant’s freedom was authorized under the circumstances. The dog’s reaction would either confirm or fail to confirm the officer’s belief that defendant possessed drugs in the car trunk. In the event of the latter, Schmidt would be free to leave. In the event of the former, probable cause for the search would exist, and no one disputes that probable cause for his arrest would also be present.

Although I would agree with the majority’s declining to view an exercise of the constitutional right to refuse consent to a search, as a factor in determining probable cause, that is not exactly the situation here. Schmidt’s partial withdrawal rendered his consent selective. As the encounter unfolded, his relinquishment of a constitutional right became limited, and that later restriction of the permission in my opinion may legitimately be considered as an additional factor warranting the further investigation and necessitating the extension of the detention.

Benham, Judge,

dissenting.

While I am in full accord with the majority’s determinations that appellant withdrew his consent to search and that his detention became an arrest, I cannot support the conclusion that the arrest was supported by probable cause to believe that appellant was committing a crime.

“Probable cause to arrest exists where, based on objective facts and circumstances, a man of reasonable caution would believe that a crime has been or is being committed. [Cit.]” Williams v. State, 251 Ga. 749, 792 (8) (a) (ii) (312 SE2d 40) (1983). The question is whether, at the time appellant was arrested, “the objective facts known to the officer would justify issuance of a . . . warrant. . . .” Love v. State, 254 Ga. 697, 698 (334 SE2d 173) (1985). That an unemployed college student rents a car in northern Illinois in late October-early November, travels to southern Florida, makes telephone calls back to Illinois, and does not have a key to the trunk of his rental automobile does not lead a person of reasonable caution to believe that a crime is being committed. Too many unjustified conclusions have to be reached before one can say with any degree of certainty that the officer’s suspicions of illegal activity evolved into probable cause to arrest. The fact that appellant was an unemployed student does not justify the conclusion that he could not afford to rent the car he was driving. Perhaps he was independently wealthy; perhaps his parents agreed to finance his trip to find an automobile. The fact that appellant was not attending classes for a week in mid-autumn does not justify the conclusion that he was engaged in illegal drug activity. Perhaps his school was closed for some type of break; perhaps appellant was engaged in some kind of independent study program. Even if classes were in session, if the fact that a college student skips school for a week to go to Florida constitutes probable cause to believe that he is engaged in illegal activity, then all young people driving cars with out-of-state tags in a beach area are subject to arrest. The officer in the case at bar, well trained in drug interdiction, detained appellant because he had suspicions and wanted a drug-sniffing dog to confirm those suspicions. It was only after the dog alerted to the presence of contraband that the officer applied to the attending magistrate for a warrant. Thus, in the officer’s mind, he did not have the requisite probable cause to arrest appellant until the drug dog alerted, some 50 minutes after the officer had, in fact, arrested appellant.

Decided July 7, 1988

Rehearing denied July 28, 1988

Donald F. Samuel, for appellant.

Darrell E. Wilson, District Attorney, for appellee.

“This court knows and fully appreciates the delicate and difficult task of those who are charged with the duty of detecting crime and apprehending criminals, and it will uphold them in the most vigilant legal discharge of all their duties, but it utterly repudiates the doctrine that these important duties cannot be successfully performed without the use of illegal and despotic means. It is not true that in the effort to detect crime and to punish the criminal, The end justifies the means.’ This is especially not true when the means adopted are violative of the very essence of constitutional free government. Neither the liberty of the citizen nor the sanctity of his home should be invaded without legal warrant [or probable cause]. Suspicion is no substitute for a legal warrant, and the badge of authority is the emblem of law and order, and gives no right to the wearer to arrest without warrant [and] imprison without authority.” Underwood v. State, 13 Ga. App. 206, 213 (78 SE 1103) (1913).

I respectfully dissent from the affirmance of the trial court’s denial of appellant’s motion to suppress.

I am authorized to state that Judge Carley and Judge Sognier join in this dissent.


author: Sognier, Judge. Carley, Judge,

text:
    76129.
    KAHN et al. v. COLUMBUS MILLS, INC. et al.
    (371 SE2d 908)
   Sognier, Judge.

Ruth Kahn, Donald Kahn, Alan Kahn and Thomas Kahn brought suit against Columbus Mills, Inc., and several individuals, including George Swift, who served on the board of directors of Columbus Mills, seeking damages for breach of fiduciary duties owed them by the directors in regard to a proposal made by Swift and entertained by the other directors to merge Columbus Mills, a publicly owned corporation, with Carpet Mill Store, Inc., a corporation privately owned by Swift and members of his family, including his daughter, defendant Joan Swift Conger. The Kahns also alleged that Swift was using his position as the beneficial owner of 33.8 percent of Columbus Mills stock to purchase Columbus Mills “for his own purposes” and to “enrich himself at the expense of and to the detriment of [Columbus Mills’] public shareholders.” The Kahns asserted in their complaint that the proposed per share offer made by Carpet Mill Store and entertained by Columbus Mills’ directors unfairly undervalued the stock in issue and was “so grossly unfair as to constitute a separate and aggravated breach of fiduciary duty.” No certification was obtained for that part of the Kahns’ complaint seeking to initiate a class action to enjoin the proposed merger and upon the trial court’s denial of the application for injunctive relief, the merger took place and Columbus Mills ceased to exist as a separate entity. OCGA § 14-2-216 (b) (2). Subsequently, the Kahns turned over their shares for the $43 per share price offered pursuant to the merger by the surviving corporation, Carpet Mill Store. The trial court granted the defendants’ motion for summary judgment and the Kahns appeal.

Appellants contend the trial court erred by granting summary judgment to appellees because questions of fact exist regarding appellees’ alleged breach of their fiduciary duties. Appellees argue that appellants, by surrendering their shares in exchange for the sell-out value offered by Carpet Mill Store, either released their cause of action or are estopped to assert it.

(1) We agree with appellants that the trial court erred by granting summary judgment to appellees insofar as the judgment was based on the issue of release. The document appellants executed when they surrendered their shares provided: “In connection with the merger ... of Columbus Mills, Inc., a Georgia corporation . . . , with and into Carpet Mill Store, Inc., a Georgia corporation (the “Purchaser”), . . . the undersigned [appellants] hereby surrenders for cancellation the above-described shares. . . . The undersigned hereby represents and warrants that the undersigned has full power and authority to sell, assign and transfer the Shares surrendered hereby and that the Purchaser will acquire good and unencumbered title thereto, free and clear of all liens, restrictions, charges and encumbrances and the same will not be subject to any adverse claim. ...”

A release is subject to the same rules of construction as govern ordinary contracts in writing. See Thomaston v. Fort Wayne Pools, 181 Ga. App. 541 (1) (352 SE2d 794) (1987). “ ‘ “The language of the contract should be construed in its entirety, and should receive a reasonable construction, and not be extended beyond what is fairly within its terms. Where the language is unambiguous, and but one reasonable construction of the contract is possible, the court must expound it as made.” [Cit.]’ [Cit.]” Cutledge v. Aetna Life Ins. Co., 53 Ga. App. 473, 475 (186 SE 208) (1936). Construing the document in accordance with these principles, it appears that appellants delivered to Carpet Mill Store their shares in Columbus Mills free and clear of claims against the stock with no claims attached to the stock against the successor corporation. No reference is made to the individual director appellees; nothing in the document addresses appellants’ suit for damages as a result of these appellees’ alleged breach of their fiduciary duties; no language in the letter purports to constitute a release of the claims asserted by appellants in their complaint. Under no reasonable construction of the document can it be held that any of the parties intended it to be construed as a release of appellants’ lawsuit or a surrender by appellants of their cause of action against appellees. Thus, we cannot agree with appellees that this document contained a release of appellants’ claims against appellees for breach of their fiduciary duties as directors of Columbus Mills. Compare Lokas v. Greer, 169 Ga. App. 537 (313 SE2d 725) (1984); Bishop v. Intl. Paper Co., 173 Ga. App. 34 (325 SE2d 870) (1984).

(2) Extensive reference is made by both parties in their briefs before this court to OCGA § 14-2-251, which sets forth the procedure whereby a stockholder who is dissatisfied with certain corporate actions (as enumerated in OCGA § 14-2-250) can exercise his right to dissent and obtain relief by recovering the fair value of his shares. The record is uncontroverted that appellants did not enforce their dissenter’s rights pursuant to this Code section. However, OCGA § 14-2-251 (j) provides: “The enforcement by a shareholder of his right to receive payment for his shares in the manner provided in this Code section shall exclude the enforcement by such shareholder of any other right to which he might otherwise be entitled by virtue of share ownership, except [in two situations not applicable in the case sub judice.] If a shareholder does not enforce his dissenter’s rights pursuant to this Code section . . . , nothing in this Code section shall be construed as barring him from bringing or maintaining an appropriate action to obtain relief on the ground that the corporate action in question will be or is unlawful or fraudulent as to him.” (Emphasis supplied.) Construing the clear and unambiguous language of subsection (j), see generally Mackey v. Lanier Collection Agency, 178 Ga. App. 467, 468-469 (1) (343 SE2d 492) (1986); Georgia Institute of Technology v. Gore, 167 Ga. App. 359-360 (306 SE2d 338) (1983), in the absence of any enforcement by appellants of their dissenter’s rights pursuant to OCGA § 14-2-251, the exclusiveness of the statutory remedy does not bar appellants from following the course of action they have selected in order to obtain the relief to which they allege they are entitled as a result of the claimed unlawful acts in issue here. See Comment (10), OCGA § 14-2-251.

(3) Appellees argue that notwithstanding the continued viability of a cause of action for breach of fiduciary duty outside of OCGA § 14-2-251, appellants’ acceptance of the sell-out offer for their Columbus Mills stock rendered otherwise worthless by the merger estops appellants from asserting their cause of action against the directors of Columbus Mills. Appellees cite this court to cases referencing a long established equitable doctrine in Georgia law to the effect that a party who has accepted the benefits of a corporate act may not thereafter continue to challenge the validity of that act. This doctrine has been applied in cases in which the complaining party personally participated in the corporate act complained of, see Chalverus v. Wilson Mfg. Co., 212 Ga. 612, 613 (4) (94 SE2d 736) (1956) (acting president); Claire v. Rue de Paris, Inc., 239 Ga. 191, 194 (236 SE2d 272) (1977) (director); Medlin v. Carpenter, 174 Ga. App. 50, 52 (2) (329 SE2d 159) (1985) (president and member of board of directors); or where the complaining party knew fully of the decision at the time of its making, registered no complaint, acquiesced in the decision, then years later brought suit. See Alexander v. Searcy, 81 Ga. 536, 543-544 (8 SE 630) (1888) (7 or 15 year acquiescence); Bloodworth v. Bloodworth, 225 Ga. 379, 386-387 (169 SE2d 150) (1969) (10 year acquiescence); Comolli v. Comolli Granite Co., 233 Ga. 461 (1) (211 SE2d 750) (1975) (acquiesced over 10 years).

In view of the facts in the case sub judice, we are not persuaded that the equitable doctrine above is applicable here. First, appellants were not directors or officers of Columbus Mills and had no influence on the proposed merger or its outcome. Second, at the time the merger was proposed, appellants did not remain silent and accept the $43 per share offer and then institute suit years after the fact. Rather, the evidence of record indicates that appellants, minority shareholders, consistently opposed the merger and instituted suit in an attempt to enjoin it as well as to call into issue the alleged breach of fiduciary duties which gave rise to the proposed merger. Only after appellants’ efforts failed and Columbus Mills merged into Carpet Mill Store despite their opposition and in the face of their continuing legal action, did appellants turn in their shares of stock and accept the $43 per share sell-out price.

We cannot say as a matter of law that, with the merger a fait accompli, appellants were required to retain their worthless stock in Columbus Mills as a requisite to maintaining their ongoing suit against appellees. Rather, we agree with appellants that by accepting this protested payment for their otherwise valueless stock, they were not acquiescing in the merger or “accepting the benefit” of the merger but instead were following the mandate of OCGA § 51-12-11 by mitigating as far as was practicable the damages accruing as a result of appellees’ alleged tortious breach of their fiduciary duty.

' There is no Georgia law addressing the issue whether appellants’ action constituted mitigation of damages or estoppel due to their acceptance of the benefits of the merger. One of the few cases from a foreign jurisdiction involving a similar fact situation not controlled by an exclusive statutory remedy is the Delaware case of Bershad v. Curtiss-Wright Corp., 535 A2d 840 (SCt. Del., 1987), in which a plaintiff sought redress for an alleged illegal merger (after having “accepted the benefit” of the merger by tendering his shares for payment) in a narrow time frame prior to the effective date of Delaware’s appraisal statute excluding all non-statutory remedies for dissenting shareholders. The Delaware court stated the plaintiff “acquiesced” in the merger by tendering his shares. However, unlike the case sub judice, the merits of the claim challenging the validity of the merger had been addressed and found wanting by both the trial court and the appellate court in Bershad, rendering the abbreviated decision that the plaintiff “acquiesced” in the merger mere dicta. The persuasiveness we find in the Bershad case lies not in its holding regarding any estoppel issues but in the fact Bershad addressed the merits of the claim before reaffirming the dismissal of that claim on estoppel grounds.

The fiduciary or quasi-fiduciary relationship existing between a corporate officer or director and the corporation’s stockholders requires the utmost good faith in the actions taken by those officers and directors. “ ‘Directors and officers in the management and use of corporate property in which they act as fiduciaries and are trustees are charged with serving the interests of the . . . stockholders.’ [Cit.] For a violation of these duties resulting in . . . injury to [the corporate] property, the directors and managers of a corporation are liable to account to the stockholders. [Cit.]” Pelletier v. Schultz, 157 Ga. App. 64, 66 (3) (b) (276 SE2d 118) (1981). We do not agree with appellees that appellants’ acknowledgement of the accomplished fact of the merger and appellants’ asserted mitigation of the damages which they claim stemmed from the alleged tortious breach of the fiduciary duty owed to them by appellees estopped appellants as a matter of law under the above authorities from pursuing their tort claim against appellees. Further, we note that while the breach of fiduciary duty was based primarily on appellants’ assertion that the per share offer was grossly and unfairly under the value of the stock, it was not the sole alleged breach nor is recovery of the difference in stock value the sole damage available to appellants. See Pelletier, supra.

The dissent asserts that to allow appellants to maintain their cause of action for appellees’ tortious breach of fiduciary duties in this situation would deprive OCGA § 14-2-251 of its efficacy since no shareholder would ever elect to invoke the statute’s procedure. While the vast majority of the fundamental corporate changes as to which a dissenting shareholder might pursue the appraisal procedure set forth in OCGA § 14-2-251 are probably straightforward, honest business decisions, the language in OCGA § 14-2-251 (j) demonstrates the Legislature’s recognition that in the real world of business, some corporate acts are or might be tainted by fraud or other actions amounting to breaches of the fiduciary duty owed by a corporation’s officers and directors to its shareholders. OCGA § 14-2-251 (j) thus allows the dissenting shareholders to pursue those causes of action stemming from such tainted misdealings rather than limiting the shareholders to the statutory appraisal remedy. We cannot agree with appellees or the dissent that allowing appellants to pursue relief through this lawsuit renders OCGA § 14-2-251 nothing more than an academic legislative exercise. Although appellees may have accurately predicted that dissenting shareholders will be disinclined to use the statutory appraisal method, preferring to institute and litigate independent legal action instead (but we note the existing remedy for any abusive litigation in Yost v. Torok, 256 Ga. 92 (344 SE2d 414) (1986)), this matter is better addressed to the legislature, not the courts of this state.

Accordingly, the trial court’s order granting summary judgment in favor of appellees is reversed.

Judgment reversed.

McMurray, P. J., Banke, P. J., Pope and Benham, JJ., concur. Birdsong, C. J., Deen, P. J., Carley and Beasley, JJ., dissent.

Carley, Judge,

dissenting.

This case is ultimately premised upon the alleged inadequacy of the $43 per share tender offer which was extended to the minority shareholders of stock in Columbus Mills, Inc. Under the undisputed evidence of record, appellants voluntarily accepted this allegedly inadequate offer and tendered their stock. It is my opinion that appellants’ acceptance of the amount which was offered to them for the tender of their shares resulted in the loss of whatever legal right, if any, they may otherwise have had to pursue this litigation against appellees. Accordingly, I believe that the trial court correctly granted appellees’ motion for summary judgment and, therefore, I respectfully dissent.

It is the established rule in Georgia that those stockholders in a corporation who have participated in the performance of an act, or who have acquiesced in and ratified an act, are thereafter estopped to complain thereof. See generally Bloodworth v. Bloodworth, 225 Ga. 379, 387 (1) (169 SE2d 150) (1969). None of the Georgia cases cited by the majority authorizes a holding that the principle of estoppel is not applicable under the facts of this case. In my opinion, the evidence of record establishes that, because appellants acquiesced in and ratified the $43 per share tender offer as the price which they would accept for their stock, they should be estopped to assert that the tender offer was inadequate. Under the undisputed evidence of record, appellants did, in fact, make a post-merger tender of their shares, and they thereby accepted the original tender offer of $43 per share. Appellants were certainly not required to do so. After the merger, appellants were entirely free to continue to refuse to part with their shares for a price they considered inadequate and to seek an adequate price by pursuing the suit they had originally filed. In the alternative, they were also free to tender their stock and receive the price of $43 per share which had originally been offered to them. Accordingly, the tender of appellants’ post-merger shares was determinative as to their status as former shareholders who had signified their acquiescence in the terms of the merger, which terms they had previously considered to be unfair to minority shareholders. “The acceptance of the benefit flowing from an unauthorized act amounts to an implied ratification of such act, whether the principal intends to ratify it or not. [Cits.] Warner v. Hill, 153 Ga. 510, 513 (112 SE 478) (1922).

The majority holds that appellants, by tendering their stock and receiving the price of $43 per share for doing so, were merely mitigating their damages. However, appellants were seeking to recover as damages the amount by which the alleged actual value of their stock exceeded the tender offer price of $43 per share. Accordingly, only by their receipt of a sum in excess of $43 per share could appellants’ post-merger relinquishment of their shares be deemed to be in mitigation of the damages which they had allegedly sustained. The acceptance of the $43 tender offer represents, instead, an acquiescence in and ratification of the very merger terms which, according to appellants, appellees had wrongfully approved as a fair offer to minority shareholders. Thus, the act which the majority cites as evidence of appellants’ mere mitigation of their damages shows, instead, appellants’ estoppel to assert that they suffered any recoverable damages at all. See Warner v. Hill, supra.

The majority is correct insofar as it holds that appellants, as dissenting shareholders to the terms of the merger, were not required to invoke the provisions of OCGA § 14-2-251 to determine the fair value of their stock. “If a shareholder does not enforce his dissenter’s rights pursuant to this Code section . . . , nothing in this Code section shall be construed as barring him from bringing or maintaining an appropriate action to obtain relief on the ground that the corporate action in question will be or is unlawful or fraudulent as to him.” (Emphasis supplied.) OCGA § 14-2-251 (j). However, the majority’s determination that the principle of estoppel is not applicable here and that the case at bar constitutes appellants’ maintenance of an “appropriate action” is a holding which will render OCGA § 14-2-251 no more than a statutory relic.

If the majority were correct, then no shareholder who dissented to the terms of a tender offer would ever elect to invoke the provisions of OCGA § 14-2-251. Under that provision, the possibility exists that the value of a dissenting shareholder’s stock could be determined to be less than the amount of the tender offer. The effect of the majority opinion is, however, to endorse a shareholder’s right to accept the tender offer from which he purportedly dissents, without losing his right as a litigant to continue to contest the adequacy of that previously accepted offer. Under the majority’s opinion, a dissenting shareholder could be assured of the immediate receipt and use of the amount of the tender offer as an established minimum value for his shares, and also thereby preserve the possibility of his receipt of additional compensation in the form of a settlement or a judgment. Therefore, the majority’s failure to recognize the applicability of the principle of estoppel in this case will render the enactment of OCGA § 14-2-251 no more than an academic legislative exercise and encourage litigation by the former dissenting shareholders of a merged corporation.

The majority’s holding is contrary to the general principle of estoppel which is recognized in this state. “No one can maintain an action for a wrong done, where he has consented or contributed to the act which occasions the loss.” Peacock v. Terry, 9 Ga. 137 (3) (1850). The majority’s conclusion is also inconsistent with the express decisions which have been rendered by the courts of other jurisdictions. “[W]hen an informed minority shareholder either votes in favor of the merger, or . . . accepts the benefits of the transaction, he or she cannot thereafter attack its fairness. [Cit.] Since [the plaintiff] tendered his shares and accepted the merger consideration, he acquiesced in the transaction and cannot now attack it.” Bershad v. Curtiss-Wright Corp., 535 A2d 840, 848 (13) (S.C. Del. 1987). Although the Bershad decision is not controlling authority, the majority’s efforts to discount its persuasiveness are unavailing. Contrary to the majority’s opinion, the above-quoted holding in Bershad was certainly not “dicta.” It specifically addressed the alleged inadequacy of the price for which the plaintiff in that case had tendered his shares, which was one of several grounds upon which the merger had been attacked.

The majority’s failure to distinguish either those existing Georgia decisions which relate to the general principle of estoppel or those persuasive decisions of other jurisdictions which relate to the exact issue raised in this case demonstrates the error of its holding that appellants are entitled to pursue this legal action against appellees. Accordingly, I must respectfully dissent from the majority’s reversal of the grant of summary judgment in favor of appellees.

I am authorized to state that Chief Judge Birdsong and Judge Beasley join in this dissent.

Decided July 13, 1988

Rehearing denied July 28, 1988

Thomas R. Burnside, Jr., James B. Wall, for appellants.

Frank C. Jones, Nolan C. Leake, David F. Guldenschuh, for appellees.


author: Carley, Judge. Sognier, Judge, Beasley, Judge,

text:
    76210.
    FLANDERS v. THE STATE.
    (371 SE2d 918)
   Carley, Judge.

Appellant was convicted of driving under the influence of drugs in violation of OCGA § 40-6-391 (a) (2). He appeals from the judgment of conviction and sentence entered by the trial court on the jury’s verdict.

1. At trial, appellant’s defense was based upon evidence that the drug which impaired his driving ability had been prescribed for him by a medical doctor. Appellant also produced evidence that he was not aware that the drug could affect his ability to drive, or that it had, in fact, impaired his ability to drive at the time of his arrest. On this evidence, appellant requested a charge on the defense of involuntary intoxication. See OCGA § 16-3-4. The trial court’s refusal to give this requested charge is enumerated as error.

OCGA § 40-6-391 (b) does provide that the legal entitlement of a person charged with driving under the influence of drugs to use a drug does not, in and of itself, afford that person with a defense to a charge of violating the Code section. Where, however, there is evidence authorizing an instruction under OCGA § 16-3-4, OCGA § 40-6-391 (b) does not resolve the issue which is raised by appellant. If, in fact, a defendant charged with driving under the influence of drugs would otherwise be entitled to an instruction under OCGA § 16-3-4, such an instruction would be required to be given without regard to whether the drug involved was legally prescribed or not.

The determinative factor in this case is that there was no evidence supporting a charge on OCGA § 16-3-4, even if there were evidence produced at trial to support a finding that appellant was “involuntarily intoxicated” within the meaning of subsection (b) of OCGA § 16-3-4. This is readily apparent because subsection (a) of OCGA § 16-3-4, as incorporated into appellant’s request to charge, provides that “[a] person shall not be found guilty of a crime when, at the time of the act. . . constituting the crime, the person, because of involuntary intoxication, did not have sufficient mental capacity to distinguish between right and wrong in relation to such act.” (Emphasis supplied.) Although appellant contends that he was “involuntarily intoxicated” as defined in subsection (b) of OCGA § 16-3-4, there is absolutely no evidence that, as a result of such “involuntary intoxication,” he did not have the capacity to distinguish between right and wrong as required by subsection (a) of that statute. Thus, the requested charge was not supported by the evidence and the trial court did not err in failing to instruct the jury in accordance with said request.

2. Appellant requested a charge on misfortune or accident. See OCGA § 16-2-2. The trial court’s refusal to give this requested charge is enumerated as error. A review of the transcript reveals, however, that there was no evidence that appellant himself did anything by accident or mistake. Accordingly, the requested charge was not adjusted to the evidence and it was not error for the trial court to refuse to give it. See Sampson v. State, 165 Ga. App. 833, 834 (4) (303 SE2d 77) (1983).

3. The trial court’s failure to charge on mistake of fact, without request, is enumerated as error. “Since mistake of fact was not [his] sole defense, [appellant] was not entitled to the charge as a matter of law; and in any case, the jury was properly charged as to the elements of the crime and the requirement of criminal intent, and moreover as to the [S]tate’s burden of proof and principles as to the credibility of the witnesses. The finding of the requisite criminal intent negates any possibility that the jury might have believed the appellant operated under mistake of fact even if the jury had been given such a charge.” Hobgood v. State, 162 Ga. App. 435, 436-437 (291 SE2d 570) (1982). See also Pitts v. State, 184 Ga. App. 220 (361 SE2d 234) (1987). This enumeration is without merit.

4. The trial court refused to give appellant’s requested charge on the State’s burden of proving that a crime had been committed. This refusal is enumerated as error. The transcript reveals that the trial court’s charge to the jury on the State’s burden of proof was otherwise full and proper. Therefore, there is no error in refusing to give the requested charge. Herrod v. State, 182 Ga. App. 876, 877 (2) (357 SE2d 317) (1987).

5. The trial court’s failure to declare a mistrial or to admonish the jury to disregard certain statements made by the prosecuting attorney in his closing argument is enumerated as error. The record shows that, “[although appellant objected to this statement, he did not request a rebuke or move for mistrial so there is nothing for us to review. [Cit.]” Cherry v. State, 174 Ga. App. 145, 146 (2) (329 SE2d 580) (1985).

6. Appellant enumerates the general grounds. After a careful review of the entire record, we find that a rational trior of fact could reasonably have found from the evidence produced 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). See Kimberly v. State, 180 Ga. App. 521 (349 SE2d 489) (1986).

Judgment affirmed.

Deen, P. J., McMurray, P. J., Banke, P. J., Pope and Benham, JJ., concur. Birdsong, C. J., Sognier and Beasley, JJ., dissent.

Sognier, Judge,

dissenting.

I respectfully dissent. OCGA § 16-3-4 provides, in pertinent part: “(a) A person shall not be found guilty of a crime when, at the time of the act. . . constituting the crime, the person, because of involuntary intoxication, did not have sufficient mental capacity to distinguish between right and wrong in relation to such act. (b) Involuntary intoxication means intoxication caused by: (1) Consumption of a substance through excusable ignorance; . . .”

In the instant case appellant testified that he had taken two Valium tablets prescribed by his doctor over a period of about ten hours, and he was unaware of the side effects of Valium. Appellant’s doctor testified that he did not advise appellant of the side effects of Valium, and it was undisputed that there was no warning label on the bottle containing the Valium. The arresting officer testified that appellant was unsteady on his feet, was swaying and staggering when he walked, and was in a narcotic stupor. The officer also testified that he had never seen anyone whose driving ability was so impaired when alcohol was not involved.

In my opinion, such evidence raised the issue of involuntary intoxication through excusable ignorance. The State’s evidence established clearly that appellant was intoxicated, and the officer’s testimony that appellant was in a narcotic stupor indicates that appellant did not know what he was doing. This raised the issue as to whether appellant had sufficient mental capacity to distinguish between right and wrong in relation to the act charged.

Appellant’s request to charge on involuntary intoxication through excusable negligence was a correct statement of the law, OCGA § 16-3-4, and was relevant and pertinent to the evidence. “Inasmuch as defendant’s request to charge stated a correct principle of law, was not argumentative in nature, . . . and was relevant and pertinent to the evidence, the court erred in refusing to charge as requested.” Pope v. State, 157 Ga. App. 154 (1) (276 SE2d 666) (1981). See also Mullins v. State, 157 Ga. App. 204, 206 (1) (276 SE2d 877) (1981). Hence, I find the failure to submit this issue to the jury was harmful error under the circumstances present here. See, e.g., Dotson v. State, 144 Ga. App. 113, 114 (1) (240 SE2d 238) (1977). Accordingly, I would reverse appellant’s conviction and remand the case to the trial court for a new trial.

I am authorized to state that Chief Judge Birdsong and Judge Beasley join in this dissent.

Beasley, Judge,

dissenting.

I concur fully with the dissent because the evidence fit the requested jury charge on OCGA § 16-3-4 as it related to the alleged violation of OCGA § 40-6-391 (a) (2).

There are two parts to the defense, and as recognized by appellant, the absence of evidence of either part would render intoxication no defense. Defendant’s position at trial, backed up by at least some evidence, was as follows:

1. I did not know that the drug could intoxicate me, and that ignorance is excusable because a) the doctor who prescribed it, upon whom I relied, did not tell me it would intoxicate me and b) the prescription bottle gave me no such warning, and c) I had no previous experience with this drug or knowledge of its intoxicating quality. That is to say, I did not know the Valium could, by its properties, render me incapable of safely driving under the circumstances I took it, and this lack of knowledge (ignorance) was not my fault. Thus there was consumption through excusable ignorance, fulfilling the requirement of OCGA § 16-3-4 (b) (1).

Although it is undisputed that defendant knew that the substance he voluntarily ingested was Valium, he testified with supporting evidence that he did not know its properties in relation to the circumstances under which he took it. The comments to the Code “offer the explanation that involuntary intoxication may be ‘due to excusable ignorance such as reliance on a physician’s prescription. . .’ Committee Notes, Code Ann. Ch. 26-7, § 26-704 (p. 67).” Johnson v. State, 235 Ga. 486, 489 (1) (220 SE2d 448) (1975).

2. I did not know while I was driving that the drug did have an intoxicating influence on me so as to render me incapable of safely driving. That is to say, I did not realize that because of its actual effect on me when I took it, it did affect my driving capability and I should not then drive. To be specific, because of its influence on me, I could not then distinguish between right (that it was permissible to drive) and wrong (that it was not permissible to drive). Thus there was a lack of mental capacity at the time to make the distinction, “in relation to [the] act” of driving under the influence, fulfilling the requirement of OCGA § 16-3-4 (a) and eliminating criminal intent.

The evidence of this latter part is defendant’s testimony that he did not have any reason to believe that he was driving any differently than he did any other day, and that he did not while driving believe his driving was impaired.

Decided July 15, 1988

Rehearing denied July 28, 1988.

Dorine E. Preis, for appellant.

Ralph T. Bowden, Jr., Solicitor, N. Jackson Cotney, Jr., Judith C. Emken, Assistant Solicitors, for appellee.


author: Banke, Presiding Judge. Beasley, Judge,

text:
    76230.
    ARGO v. THE STATE.
    (371 SE2d 922)
   Banke, Presiding Judge.

The appellant was found guilty on five counts of an indictment charging that he had engaged in incest with his stepdaughter on six occasions during 1985. His primary contention on appeal is that the state failed to prove the existence of a legally valid marriage between himself and the mother of the alleged victim, with the result that there was no proof that the child was his stepdaughter within the contemplation of OCGA § 16-6-22 (a) (1).

The alleged victim was 16 years old at the time of trial and approximately 15 years old at the time the acts of incest were alleged to have occurred. It is undisputed that the appellant and the victim’s mother had been cohabiting openly as husband and wife since 1972, in a household which had come to include at least two of their own offspring in addition to the victim. The victim testified that she referred to the appellant as “daddy,” and he acknowledged that he considered her to be his stepdaughter. However, there was evidence that the appellant had been married to another woman at the time he began cohabiting with the victim’s mother, and there was no showing that this prior marriage had been dissolved by divorce. On the other hand, neither was there any affirmative evidence tending to establish that the appellant’s first wife was still alive. Although the appellant testified that his first wife had moved to Wisconsin after their separation in 1972, he acknowledged that he had not seen her since then, and he gave no indication that he had received any information from or concerning her since 1972. Held:

1. OCGA § 16-6-22 (a) (1) specifies, in pertinent part, that “[a] person commits the offense of incest when he engages in sexual intercourse with a person to whom he knows he is related ... by marriage as . . . [f]ather and . . . stepdaughter. . . .” While the appellant does not deny that the evidence in this case was otherwise sufficient to establish the existence of a common-law marriage between himself and the victim’s mother, he contends that no such marriage could be inferred in the absence of evidence affirmatively establishing that his prior marriage had been terminated. Stated somewhat differently, he contends that he is shielded by his prior bigamy from criminal liability for incest. We disagree.

As a general rule, the validity of a second marriage will be presumed “ ‘until evidence is adduced that the spouse of the first marriage is living, and only then [is] the burden on the party contending that the second marriage is valid to go forward with the evidence and show that the first marriage was dissolved by divorce.’ ” Patrick v. Simon, 237 Ga. 742, 743 (229 SE2d 746) (1976). Although this rule is normally applied in favor of subsequent ceremonial marriages, we can conceive of no reason why it should not also apply in favor of subsequent common-law marriages, particularly where, as in the present case, the cohabitation evidencing the common-law marriage is continuing and has produced offspring. The essentials of a marriage are set forth in OCGA § 19-3-1, “and [the Supreme Court] has repeatedly recognized common-law marriages as complying with these essentials.” Campbell v. Allen, 208 Ga. 274, 280 (66 SE2d 226) (1951).

Moreover, even if it was incumbent on the state to come forward with evidence affirmatively establishing that the appellant’s first wife was no longer living, it met that burden by showing that she had been absent since 1972 without being heard from. “As a general rule the law will presume the death of a person after his absence for seven years, when nothing has been heard from him.” Murchison v. Green, 128 Ga. 339, 342 (57 SE 709) (1907). Pursuant to OCGA § 19-3-5 (b), a marriage which is void due to the existence of a prior, undissolved marriage becomes valid “after removal of the impediment [where there is] a subsequent free and voluntary consent and ratification of the marriage accompanied by cohabitation as husband and wife. . . .” The evidence in this case clearly established that there was such voluntary consent to and ratification of the de facto marriage relationship between the appellant and the victim’s mother following the first wife’s absence for a period in excess of seven years, accompanied by their continued cohabitation as husband and wife. Consequently, the jury was authorized to conclude beyond a reasonable doubt that the appellant and the victim were related by marriage as stepfather and stepdaughter at the time the alleged acts of intercourse occurred.

2. The appellant contends that the victim’s testimony was insufficiently corroborated to support his convictions and also that his convictions should be reversed because the circumstantial evidence offered by the state failed to exclude every reasonable hypothesis save that of his guilt. Both these contentions are without merit. “A conviction for incest may be based upon the uncorroborated testimony of the prosecuting witness, if the testimony is sufficient to convince a rational trier of fact of the defendant’s guilt beyond a reasonable doubt.” Baker v. State, 245 Ga. 657 (5), 666 (266 SE2d 477) (1980). Accord Scales v. State, 171 Ga. App. 924 (2) (321 SE2d 764) (1984). Similarly, it is unnecessary for the circumstantial evidence to exclude every other reasonable hypothesis save that of the defendant’s guilt where, as here, there is also direct evidence of his guilt in the form of eyewitness testimony. See, e.g., Saine v. State, 170 Ga. App. 610, 611 (1) (317 SE2d 650) (1984).

The evidence in this case, viewed in the light most favorable to the prosecution, was sufficient to enable a rational trier of fact to find the appellant guilty beyond a reasonable doubt of each of the five counts of incest of which he was convicted. See Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

3. The appellant contends that, “in light of the court’s failure to provide curative instruction,” it was error to admit certain testimony by a psychologist and two police investigators recounting various statements the victim had previously made which supported her testimony at trial. The appellant did not object to the admission of any of this testimony during the trial, nor has he suggested, either in the trial court or in this court, what curative instructions ought to have been provided with respect to it. Consequently, this enumeration of error presents nothing for review by this court. See generally Edwards v. State, 224 Ga. 684 (1) (164 SE2d 120) (1968); Benjamin v. State, 172 Ga. App. 3 (2) (321 SE2d 769) (1984). The testimony in question was, in any event, admissible under the Supreme Court’s decision in Cuzzort v. State, 254 Ga. 745 (334 SE2d 661) (1985).

4. The appellant contends that the court further erred in permitting the psychologist to express the opinion that certain psychological tests performed on the child had “confirmed her truthfulness.” This is a mischaracterization of the witness’s testimony. What the psychologist actually said in this regard was not that the child’s truthfulness had been confirmed by the tests but that, in his opinion, it would have been “very difficult” for a 15-year-old to fake all of the symptoms which he had observed in arriving at his conclusion that the child had been sexually abused. In any event, no objection was made to this testimony. Consequently, this enumeration of error also presents nothing for review.

5. The appellant enumerates as error the court’s failure to give his requested charge based on OCGA § 24-9-85, regarding the credit to be given a witness whose testimony has been impeached and the requirement that the testimony of a witness who has wilfully and knowingly given false testimony be disregarded unless corroborated by other evidence.

The trial court charged the jury that a witness’s testimony could be discredited by disproving facts testified to by the witness or by proof of prior contradictory statements made by the witness; and the court further charged the jury that it was their exclusive function to weigh all of the testimony and evidence supporting or discrediting any witness and to determine whether to believe or disbelieve the testimony of a witness. We are at a loss to understand how the charge requested by the appellant could have been more beneficial to him or in what respect the charge given by the court failed to provide the jury with proper guidelines for determining his guilt or innocence. In particular, we do not comprehend the appellant’s contention on appeal that the charge given by the court “encouraged the jury to ignore the individual credibility of each witness.” Consequently, we find this enumeration of error to be without merit. Accord Poteat v. State, 251 Ga. 87 (3) (303 SE2d 452) (1983).

6. The appellant contends that “a new trial is warranted because the state failed to offer any evidence as to the reasons that all pending charges had been dropped against the prosecutrix prior to trial.” There has been no showing whatever in this case that the state withheld information favorable to the appellant, and we are aware of no authority for the proposition that the state is ever under an obligation to introduce evidence favorable to the accused. See generally Rini v. State, 236 Ga. 715 (4) (225 SE2d 234) (1976). Consequently this enumeration of error is also without merit.

Judgment affirmed.

Birdsong, C. J., Deen, P. J., McMurray, P. J., Pope and Benham, JJ., concur. Carley, Sognier, and Beasley, JJ., dissent.

Beasley, Judge,

dissenting.

Although I would concur in Divisions 2 through 6, I respectfully dissent because I cannot concur in Division 1, which would leave consideration of the remaining enumerations of error moot.

Proof of the element of Code-specified family relationship must be shown beyond a reasonable doubt. OCGA § 16-1-5 (1983). See Cook v. State, 11 Ga. 53, 56 (1852). In order to prove the required father/stepdaughter relationship, there must be, for one thing, evidence of marriage between the defendant and the mother of the prosecutrix. Wilkins v. State, 96 Ga. App. 841 (2) (101 SE2d 912) (1958).

OCGA § 19-3-2 (3), which applies to common law as well as ceremonial marriages, Hiter v. Shelp, 129 Ga. App. 401, 402 (199 SE2d 832) (1973), requires that “a person . . . [h]ave no living spouse of a previous undissolved marriage,” and that “[t]he dissolution of a previous marriage in divorce proceedings must be affirmatively established and will not be presumed.” Defendant and the mother of the prosecutrix had not entered into a ceremonial marriage, although there was sufficient evidence to show a common law “marriage” in that they held themselves out as husband and wife. But there was undisputed testimony by the prosecutrix, her mother, and defendant that defendant had previously been married, defendant’s wife was still living, as far as he knew, and he had not obtained a divorce. It was not established that nothing had been heard from her for seven years so as to raise any presumption that she was dead. There was merely testimony, by defendant, that he had last seen her in 1972 and “[s]he lives in Wisconsin.” No evidence of dissolution of that marriage was presented. A prior undissolved marriage renders a subsequent “marriage” void. Lovett v. Zeigler, 224 Ga. 144 (160 SE2d 360) (1968); Kicklighter v. Kicklighter, 217 Ga. 54, 59 (3) (121 SE2d 122) (1961); Clark v. Cassidy, 62 Ga. 407, 412 (5) (1879).

Decided July 15, 1988

Rehearing denied July 28, 1988

Virgil L. Brown, for appellant. Johnnie L. Caldwell, Jr., District Attorney, J. David Fowler, Assistant District Attorney, for appellee.

Thus, because the legal impediment of defendant’s prior dissolved marriage had not been removed, a valid common law marriage between defendant and the prosecutrix’ mother never arose. The required relationship for conviction of incest is absent. This element cannot be supplied by a presumption against defendant (as to the validity of the second “marriage”) in this criminal case, absolving the State of proving all the elements of OCGA § 16-6-22 beyond a reasonable doubt.

I am authorized to state that Judge Carley and Judge Sognier join in this dissent.