author: Pope, Judge.

text:
    74343.
    SMITH et al. v. THE STATE.
    (361 SE2d 215)
   Pope, Judge.

Lloyd G. Smith and Donald R. Starks bring this appeal from their convictions and sentences of possession of marijuana with intent to distribute. Held:

1. Defendants first enumerate as error the trial court’s denial of their motion to suppress the marijuana seized as the result of a search of their car. The apparent basis of this enumeration is the purported lack of probable cause to authorize the warrantless search. However, the trial court pretermitted the issue of probable cause, and found that defendants freely and voluntarily consented to the search of the car. Since our resolution of the consent issue is dispositive of this enumeration of error, we likewise pretermit a discussion of probable cause in this case. See Browning v. State, 176 Ga. App. 420, 422 (336 SE2d 41) (1985), holding: “ ‘Probable cause and a warrant are not required for a search and seizure which is conducted pursuant to consent.’ ”

“On appeal, a trial court’s ruling on disputed facts and credibility at a suppression hearing must be accepted unless clearly erroneous.” Muff v. State, 254 Ga. 45, 48 (326 SE2d 454) (1985). From the disputed facts of record, the trial court was authorized to find that shortly before 4:00 a.m. on May 16, 1986 Trooper Michael J. Ralston of the Georgia State Patrol observed defendants’ car traveling north on 1-75 in Gordon County. The car had only one headlight which was functioning and was traveling slightly over the speed limit. Troopér Ralston pursued the car for approximately one mile before making a stop, during which time information regarding the car and its tag number was called in to the local patrol station. Upon stopping the car, Trooper Ralston determined the driver to be defendant Starks and the car to be rented. Starks could not produce a driver’s license, but a computer check produced information that he did have a valid Tennessee driver’s license. He did produce a rental agreement for the car; however, the rental agreement was in the name of a third person (Maurice Mondie) not in the car and did not provide for an additional designated driver.

At the time of the stop, defendant Smith was lying down in the backseat of the car, where he remained during the trooper’s investigation regarding the validity of the license, registration and rental agreement. Following a general conversation concerning defendants’ itinerary and having returned the car registration and issued a warning citation to Starks for the traffic violation (13 minutes elapsed time), Trooper Ralston sought permission to search the car. Starks stated that “Mr. Mondie had left Mr. Smith with responsibility for the vehicle when they had rented it and that he was responsible for the car and he would rather me ask Mr. Smith for permission to search the car.” Trooper Ralston then asked Smith to step to the rear of the car and sought permission from him to search the car. After being advised that he did not have to consent, he orally consented to the search and also signed a written “Waiver of Constitutional Rights Consent Search Form.” Smith read the form while Trooper Ralston held a flashlight. Smith testified that he understood from reading the form that he had the right to refuse consent. Trooper Ralston did not threaten, coerce, or intimidate Smith in any way in order to secure his consent, nor did he promise Smith anything or hold out any hope of benefits or reward to him if he would give his consent. At no time did Smith object to the search or in any way indicate that he lacked authority to grant permission for the search.

Trooper Ralston entered the car and looked through the interior. He raised the lower portion of the backseat and “smelled a strong odor of marijuana.” He then took a key which was in the ignition and proceeded to the rear of the car, inserted the key into the trunk, but was unable to open it. He asked both defendants if there was a second key and both responded that there was only one key. However, both insisted that if they had another key, they would certainly give it to him. Trooper Ralston obtained a wrench and removed the bolts holding the back part of the backseat, thereby gaining entry into the trunk where he found two duffle bags containing a total of 95 pounds of marijuana. He subsequently made application and obtained a search warrant in order to conduct a more thorough exploration of the trunk area. Although no further evidence was obtained, each defendant claimed one piece of luggage containing personal belongings retrieved from the trunk.

“Consent searches are valid [cit.] but where the [S]tate relies upon consent, the burden is upon [it] to demonstrate that the consent was voluntary, and not the result of duress or coercion, express or implied. [Cit.] Voluntariness must be determined from all of the circumstances. [Cit.]” Cuevas v. State, 151 Ga. App. 605, 609 (260 SE2d 737) (1979), cert. den., 445 U. S. 943 (1980). On the basis of the record in this case, we find that the consent to the search of the car was freely and voluntarily given. Accord Lopez v. State, 184 Ga. App. 31 (1) (360 SE2d 722) (1987); Mancil v. State, 177 Ga. App. 663 (340 SE2d 279) (1986); Briscoe v. State, 166 Ga. App. 421 (1) (304 SE2d 742) (1983).

2. Defendant Smith also challenges the sufficiency of the evidence to support his conviction. We find that Smith’s presence, companionship and conduct before and after the discovery of the marijuana in the trunk of the car showed more than his mere presence at the scene of the crime and authorized the trier of fact to find beyond a reasonable doubt that he had at least constructive possession of the marijuana. Accord Hardin v. State, 172 Ga. App. 232 (1) (322 SE2d 540) (1984); Lang v. State, 171 Ga. App. 368 (1) (320 SE2d 185) (1984); see also Hughes v. State, 150 Ga. App. 90 (256 SE2d 634) (1979). Also, under the facts in this case, Smith’s reliance on the “equal access” rule is misplaced. Castillo v. State, 166 Ga. App. 817 (2) (305 SE2d 629) (1983).

Decided September 11, 1987

Rehearing denied September 28, 1987.

W. Michael Maloof, John Nuckolls, for appellants.

Darrell E. Wilson, District Attorney, for appellee.

Judgment affirmed.

Birdsong, C. J., and Deen, P. J., concur.


source: Caselaw Access Project

author: Benham, Judge.

license: Public Domain

text:
    74351.
    WHITEHEAD v. THE STATE.
    (361 SE2d 188)
   Benham, Judge.

Appellant was convicted of commercial gambling. Evidence essential to his conviction was seized in a search pursuant to a warrant. A motion to suppress the evidence seized in that search was denied by the trial court. The sole issue raised on appeal is whether the affidavit in support of the application for the warrant sufficiently shows the reliability of the confidential informant from whom the affiant received information.

The standard to be applied is the “ ‘totality of the circumstances’ test. ‘The task of the issuing magistrate is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the “veracity” and “basis of knowledge” of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place. And the duty of a reviewing court is simply to ensure that the magistrate had a “substantial basis for . . . concluding” that probable cause existed.’ [Cit.]” State v. Stephens, 252 Ga. 181, 182 (311 SE2d 823) (1984). The Supreme Court emphasized in that case that application of that standard involved “a practical, common-sense approach to the requirement of probable cause relative to the issuance of search warrants.” Id.

The portion of the affidavit which appellant contends is insufficient reads as follows: “Source number one has been known by the affiant for a period of more than 4 months and has given information to the affiant on more than 10 occasions that has been proved correct through independent investigation. During this time the source has not given the affiant any information that has been incorrect or that has been proved wrong.” In other portions of the affidavit, it was stated that the informant (source number one) had seen in appellant’s apartment, within 72 hours prior to the time of affidavit, “numerous pieces of paper with random three (3) digit numbers imprinted on them. The source knows that [t]hese pieces of paper are lottery tickets from past experience.”

In support of his position that the affidavit was insufficient, appellant relies on Felker v. State, 172 Ga. App. 492 (4) (323 SE2d 817) (1984). We find sufficient differences between this case and that to come to a contrary conclusion. First, the primary basis for finding the affidavit insufficient in Felker was that the source of the informant’s knowledge was not shown; here, the affidavit recites that the informant saw the evidence of the crime in appellant’s apartment. An additional ground on which the decision in Felker was based was the failure to give facts showing the reliability of the informant. On that issue, Felker relied on Kouder v. State, 154 Ga. App. 597 (1) (269 SE2d 92) (1980), and Galgano v. State, 147 Ga. App. 284 (248 SE2d 548) (1978), for the proposition that the affidavit needed to provide specifics on the question of reliability. Galgano set out three types of information desirable in that portion of an affidavit in support of an application for a search warrant: the type of information previously supplied by the informant, the use to which that information has been put, and the length of time since the previous information was furnished. In Kouder, however, this court cautioned against too strict a construction of its holding in Galgano: “We do not believe that Galgano ... is to be interpreted as requiring that in every case each of the three specifics (type of information, use to which it was put, and elapsed time since the information was furnished) as to the information provided must be present. The requirement expressed there is that one or more specifics as to the information be furnished the magistrate so that from the facts made known to him he may make an independent analysis as to whether the informant is presently a reliable and trustworthy person.” Kouder v. State, supra at 598.

Kouder’s interpretation of the specificity requirement is further strengthened by a reading of Tomblin v. State, 128 Ga. App. 823, 824 (198 SE2d 366) (1973), cited in both Kouder and Galgano. There, the affidavit described the affiant’s source as follows: “A reliable informer which has been used numerous times in the past and has proven to be a very reliable person. . . .” This court took a common-sense approach to the evaluation of that affidavit. “[Defendant] contend[s] the reliability of the informer is insufficiently shown — that there are no facts showing how, for what purpose, or with what result, this informer was used in the past which would prove his reliability. We believe that while this portion of the affidavit could have been set out much better, it is capable of logical interpretation which would satisfy the requirements. For example, it makes common sense that the ‘reliable informer’ was ‘used numerous times in the past’ as an informer; not, as [defendant] contend[s], in some other purely personal capacity. It is also clearly inferable that information he had furnished in the past had been valuable, or he would not have been used numerous times. Reliability may be shown by a past history in similar matters. [Cits.] Therefore, while a recital that his information had led to certain arrests, convictions, etc. would be desirable, we do not believe it is essential to show reliability.” Tomblin v. State, supra at 824.

Decided September 8, 1987

Rehearing denied September 28, 1987.

Chevene B. King, Jr., for appellant.

Willis B. Sparks III, District Attorney, Vernon R. Beinke, Jennie E. Rogers, Assistant District Attorneys, for appellee.

Viewing the affidavit in this case in that light, we note that the time since the informant has furnished other information is ascertainable: in approximately four months, the informant had given accurate information ten times. Furthermore, reading the reliability part of the affidavit in context with the rest of it, it is inferable that the earlier information has concerned gambling since the affiant referred to the informant’s experience as a factor in its recognition of gambling material.

Applying the practical, common-sense approach of Stephens and Tomblin, we find the affidavit in this case sufficient to provide the magistrate with a substantial basis for concluding that probable cause existed. Accordingly, there was no error in the denial of appellant’s motion to suppress.

Judgment affirmed.

Banke, P. J., concurs. Carley, J., concurs in the judgment only.


author: Sognier, Judge.

text:
    74463.
    TYSON v. THE STATE.
    (361 SE2d 386)
   Sognier, Judge.

Appellant was convicted of violating the Georgia Controlled Substances Act by selling marijuana, and he appeals.

1. In his first enumeration of error appellant contends the trial court erred by refusing to permit defense counsel to withdraw, by failing to declare a mistrial and by failing to dismiss the indictment. Because these alleged errors are based on trial testimony implying unethical conduct by one of appellant’s two defense counsel, they will be considered together.

Martin Smith, a State witness, testified during cross-examination that Virgil Brown, one of appellant’s counsel, had “blown” Smith’s undercover operation by informing several persons that Smith was an undercover agent. Smith also testified, in response to questions by the defense, that Brown had solicited several of those same persons to become Brown’s clients. Smith testified further that Joe Salvatore, a trusty at the jail and a former client of Brown, informed the sheriff that Brown had come to Salvatore and asked him to steal documents relating to appellant’s case from the sheriff’s office. A body bug was placed on Salvatore to record a conversation with Brown; a transcript of that conversation disclosed that Salvatore offered to steal some documents from the sheriff’s office and Brown told him not to do it, and not to break the law.

The record does not disclose the basis of Brown’s request to withdraw as counsel, although appellant’s brief indicates it was due to Smith’s testimony summarized above, thereby forcing Brown to testify to rebut such testimony. Appellant’s other attorney also requested that he be allowed to withdraw as counsel, and the record reflects that that attorney’s request was denied because he did not comply with Rule 4.3, Uniform Superior Court Rules. 253 Ga. 813. In the absence of evidence in the transcript as to the basis of Brown’s request and the court’s reason for denying his request to withdraw, we must presume that the court acted properly in denying the request. OCGA § 24-4-24 (2); Thomas v. State, 174 Ga. App. 560 (1) (330 SE2d 777) (1985).

We find nothing in the record to indicate that a motion for a mistrial was made by appellant on the basis of Smith’s testimony, so there is nothing for us to review as to that alleged error. Hudson v. State, 175 Ga. App. 692 (1) (334 SE2d 20) (1985). Appellant also complains that the prosecution’s conduct was so outrageous in attempting to trap Brown into committing unethical acts (bugging Salvatore) that the indictment should have been dismissed. Again, we find nothing in the transcript to indicate that appellant moved for dismissal of the indictment. Further, it was appellant’s cross-examination which first raised and then pursued this issue, and one cannot complain of matters caused by his own procedure or conduct. Ward v. State, 175 Ga. App. 410 (2) (333 SE2d 669) (1985).

2. Appellant asserts error by admitting into evidence the marijuana sold by appellant because a proper chain of custody was not established. Evidence in this regard disclosed that after Smith bought the marijuana from appellant, Smith drove to his home in Macon, where he placed the “baggy” containing the marijuana in an evidence bag. Smith labeled the evidence bag with appellant’s name, the time and date of purchase, the charge, and Smith’s signature. He then placed the evidence in a locked container behind the seat of his truck, and three days later delivered it to the State Crime Laboratory in Macon. Smith was the only person with the combination to his locked box, and at the time of delivery to the crime laboratory there was no indication of tampering. Smith identified State’s Exhibit 1 as the evidence package he delivered to the laboratory. Shawn Humphrey testified that she is a forensic chemist at the crime laboratory and its records show that the marijuana was received on July 9, 1985, by one Festus, who is no longer employed at the laboratory. Humphrey removed the evidence from the evidence vault and analyzed it as marijuana. State’s Exhibit 1 was the evidence bag ,containing marijuana delivered by Smith to the laboratory and analyzed by Humphrey.

The burden the State must carry to gain admission of such evidence (marijuana) is to show with reasonable certainty that the evidence is the same as that sold by appellant to Smith and that there has been no tampering or substitution. Johnson v. State, 143 Ga. App. 169-170 (1) (237 SE2d 681) (1977); Anderson v. State, 247 Ga. 397, 399 (2) (276 SE2d 603) (1981). The circumstances need only establish reasonable assurance of the identity of the evidence. Patterson v. State, 224 Ga. 197, 199 (2) (160 SE2d 815) (1968); Anderson, supra. We find the State met this burden and the evidence was admitted properly.

3. Appellant contends the trial court erred by entering judgment of conviction on an ambiguous jury verdict. Appellant was indicted and tried on one count of violating the Georgia Controlled Substances Act by selling marijuana. The trial court charged the jury on the offense charged and on the lesser included offense of possession of marijuana. When the jury foreman announced its finding of guilty without specifying whether appellant was guilty of the offense charged or the lesser offense, the court inquired as to whether the jury found appellant guilty of selling marijuana or guilty of the lesser included offense of possession of marijuana. When the foreman replied: “That’s guilty of both counts, sir . . .,” the court informed the jury foreman he would have to make a choice; the foreman then stated that the jury found appellant guilty of selling marijuana. It is this colloquy between the court and the jury foreman which appellant contends resulted in an ambiguous verdict. We do not agree.

Immediately after the brief colloquy related above, appellant asked for a poll of the jury. During the poll, each juror responded that his/her verdict of guilty of selling marijuana was his/her verdict in the jury room and it was his/her verdict now (at the time of the poll). Although the jury foreman may have been confused initially by the court’s questions, the jury poll made it clear that there was no ambiguity in the verdict and the court acted properly in assisting the jury in stating the verdict in proper form. See Suber v. Fountain, 151 Ga. App. 283, 291 (3) (259 SE2d 685) (1979). Hence, this enumeration of error is without merit.

Judgment affirmed.

McMurray, P. J., and Beasley, J., concur.

Decided September 8, 1987

Drug violation. Upson Superior Court. Before Judge Miller.

Virgil L. Brown, Michael P. Katz, for appellant.

Johnnie L. Caldwell, Jr., District Attorney, Paschal A. English, Jr., Assistant District Attorney, for appellee.


text:
    74588.
    KNIGHT et al. v. GEORGIA FARM BUREAU MUTUAL INSURANCE COMPANY.
    (361 SE2d 190)
   Sognier, Judge.

Georgia Farm Bureau Mutual Insurance Company sought a declaration of its rights and obligations under two automobile insurance policies in which Rodney Knight was a named insured. The case arose from an incident in which Knight was injured while riding as a passenger in an automobile driven by Preston Andrew Stewart and owned by Stewart’s father. Knight and his mother, Blanche M. Page, brought suit against the Stewarts to recover damages for Knight’s injuries and loss of his services. Although not a party, Georgia Farm Bureau, Knight’s uninsured motorist insurance carrier, was served in that suit pursuant to OCGA § 33-7-11 (d). Georgia Farm Bureau did not answer in the tort action, either in its own name or in behalf of the Stewarts, but instead brought this action seeking a declaration that it had no obligation arising from the accident. The trial court granted summary judgment in favor of Georgia Farm Bureau and denied Knight and Page’s cross-motion for summary judgment. Knight and Page appeal from both rulings.

It is undisputed that the Stewart vehicle was insured under two policies with liability limits of $25,000 and $100,000 issued by State Farm Mutual Insurance Company, and that the uninsured motorist coverage in each of the two policies issued by appellee covering appellants had a $10,000 limit, the statutory minimum at that time.

1. Appellants contend the determination that the Stewart automobile was not an “uninsured motor vehicle” under the provisions of OCGA § 33-7-11 (b) (1) (D) was premature, and thus the trial court erred by granting summary judgment in favor of appellee, thereby releasing appellee from its obligation to provide uninsured motorist coverage to appellants.

In defining “uninsured motor vehicle,” OCGA § 33-7-11 (b) (1) (D) sets forth five situations under which a motor vehicle may be statutorily deemed “uninsured.” Appellee’s argument centers on subsection (ii), which provides that a vehicle is deemed “uninsured” when there is “liability insurance with limits of coverage which are less than the limits of the uninsured motorist coverage provided under the insured’s insurance policy . . . .” Appellee asserts that because the Stewart vehicle was insured, with liability insurance limits higher than the limits of appellants’ uninsured motorist coverage, it cannot under the provisions of subsection (ii) be an “uninsured motor vehicle,” and thus appellee has no obligation to appellants as their uninsured motorist insurance carrier. This argument, however, ignores the existence of the other four situations listed in OCGA § 33-7-11 (b) (1) (D), specifically subsection (iii), which provides that a vehicle is considered uninsured if liability insurance exists “but the insurance company writing the insurance has legally denied coverage under its policy.” We do not agree with appellee that the failure of the Stewart vehicle to qualify as an “uninsured motor vehicle” under subsection (ii) is dispositive of the question whether the Stewart vehicle is an “uninsured motor vehicle” under the remaining subsections of OCGA § 33-7-11 (b) (1) (D). Established principles of law require that wherever possible we construe statutory language in a manner that will not render it meaningless or mere surplusage. See State of Ga. v. C. S. B., 250 Ga. 261, 263 (297 SE2d 260) (1982). Nothing in the statutory language indicates that subsection (ii) is the determinative factor as to whether a vehicle is “uninsured” under the statute. We reject appellee’s argument that this court’s opinion in State Farm &c. Ins. Co. v. Hancock, 164 Ga. App. 32 (295 SE2d 359) (1982), requires us to construe subsection (ii) as a necessary element in the definition of all uninsured motor vehicles. The issue in Hancock, supra, (whether “stacking” uninsured motorist coverage was permissible where the tortfeasor was underinsured rather than uninsured) required analysis of only that portion of the statute relevant to the facts in that case, and thus the opinion dealt only with subsection (ii). We note this court’s decision in Harwell v. Continental Ins. Co., 183 Ga. App. 410 (359 SE2d 172) (1987). We do not find that decision is in conflict with our holding today. In Harwell, we were called upon to construe only OCGA § 33-7-11 (b) (1) (D) (ii), and we decided that prior to its amendment, that subsection did not include a situation such as the one sub judice, because the specific language used, “limits of coverage,” could not be construed to mean “available coverage.” Such an argument is not advanced in the case at bar.

Turning to the remaining provisions of OCGA § 33-7-11 (b) (1) (D), appellants argue that because the possibility exists that liability coverage under the State Farm policies might be exhausted by payment of other claims arising from the accident (thereby preventing payment of appellants’ claim), a legal denial of coverage could result, thus qualifying the Stewart vehicle as an “uninsured motor vehicle” under subsection (iii). We find merit in this argument.

This court has held in Hemphill v. Home Ins. Co., 121 Ga. App. 323, 335 (174 SE2d 251) (1970), that a legal denial of coverage under OCGA § 33-7-11 is a denial of coverage which is -“legally sustainable.” OCGA § 33-7-11 “is designed to apply in several situations where there is a liability policy in effect, but for seme reason no recovery can be obtained against the liability insurance carrier.” Smith v. Commercial Union Assur. Co., 246 Ga. 50, 52 (268 SE2d 632) (1980). We hold that as a matter of law, denial of coverage by a liability insurance carrier resulting from exhaustion of the available coverage by payment of other valid claims constitutes a “legal denial of coverage” under OCGA § 33-7-11 (b) (1) (D) (iii). We note that for policies issued, delivered, or renewed on or after January 1, 1987, Ga. L. 1986, p. 394, § 2 (amended OCGA § 33-7-11 (b) (1) (D) (ii)), covers just such an eventuality by providing that a vehicle shall be considered uninsured when “available coverage” (defined as “the limits of coverage less any amounts by which the maximum amounts payable under such limits . . . have, by reason of payment of other claims or otherwise, been reduced below the limits of coverage”) is less than the uninsured motorist coverage limits. Ga. L. 1986, pp. 394-395. Statutes should be construed in harmony with the policy of the law. Singleton v. Close, 130 Ga. 716, 720 (1) (61 SE 722) (1908). In keeping with the remedial nature of the uninsured motorist law, and in the absence of controlling authority to the contrary, we do not find the legislature’s explicit addition of clarifying language to subsection (ii) to cover situations such as the one sub judice indicates that this matter was not already implicitly included in subsection (iii).

Although our holding above is dispositive as to the matter of law presented by appellee’s motion for summary judgment, it appears no evidence was before the trial court as to whether Stewart’s liability coverage was or was not exhausted, and thus, no determination could be made whether the Stewart vehicle was uninsured. Without the resolution of that issue of fact, summary judgment in favor of either party was inappropriate, and the trial court therefore erred by granting appellee’s motion for summary judgment. See generally Buffington v. Leader Nat. Ins. Co., 179 Ga. App. 177, 178 (345 SE2d 684) (1986).

2. Appellants also enumerate as error the trial court’s denial of their cross-motion for summary judgment. For the reasons discussed in Division 1, the denial of summary judgment to appellants was proper on the issue of whether the Stewart vehicle was “uninsured.” In addition, contrary to the arguments of both parties, this case was not amenable to summary adjudication on the issue whether appellants notified appellee in timely fashion of their claim. It is uncontroverted that appellants did not notify appellee of the accident or any possible claim until filing the tort action approximately two years later, and that the policies in question require notice “as soon as practicable.” However, “ ‘[t]he uninsured motorist endorsement becomes operative, not when there has been an accident, but when it is ascertained that the operator was uninsured. Where the uninsured motorist endorsement provides for notice as soon as practicable, this should be interpreted as if it read as soon as practicable after discovery of the uninsured status . . . [Cit.]’ ” (Emphasis supplied.) Gregory v. Allstate Ins. Co., 134 Ga. App. 461, 464 (214 SE2d 696) (1975). Here, the evidence did not show if or when the “uninsured status” was discovered. Thus, the trial court could not decide whether appellants gave notice “as soon as practicable” until facts were developed showing whether the Stewart liability coverage was exhausted, and if so, when. It follows that the trial court properly denied summary judgment to appellants. See generally Smith v. Rowell, 176 Ga. App. 100, 101 (335 SE2d 461) (1985).

3. Finally, appellants maintain that a petition for declaratory judgment was improper here because all matters of coverage could have been raised by appellee in the tort action. This contention is without merit. Contrary to appellants’ argument, Tennessee Farmers &c. Ins. Co. v. Wheeler, 170 Ga. App. 380, 381 (317 SE2d 269) (1984) is factually distinguishable and therefore inapposite. In Tennessee Farmers, before filing its petition for declaratory relief the uninsured motorist carrier had elected under OCGA § 33-7-11 (d) to answer the Georgia tort action in its own name, thus conferring upon the Georgia court jurisdiction to decide the identical questions regarding coverage which it later improperly put before the Tennessee court. Id. at 381. We held in Tennessee Farmers the declaratory judgment action was improper “[u]nder the facts and circumstances presented” there, since “[w]hen an insurer elects to file pleadings in its own name in an action brought under OCGA § 33-7-11, ‘all rights may be asserted in the main action and there is no necessity for direction in a separate action for a declaratory judgment.’ [Cits.]” Id. In the case sub judice, appellee “is not a party to the damage [action] and the question of its coverage is not in issue there. Suits for declaratory judgment by an automobile insurance carrier seeking to determine questions of coverage with respect to pending tort actions have been approved in numerous instances by the Supreme Court [cits.], and in countless others by this court [cits.], and no reason appears why the present suit is not maintainable.” Smith v. State Farm &c. Ins. Co., 122 Ga. App. 430, 432 (1) (177 SE2d 195) (1970). Accord Coleman v. Dairyland Ins. Co., 130 Ga. App. 228, 230 (202 SE2d 698) (1973).

Judgment affirmed in part and reversed in part.

McMurray, P. J., and Beasley, J., concur.

Decided September 8, 1987

Rehearing denied September 28, 1987

George P. Graves, for appellants.

N. David Wages, John E. Stell, Jr., for appellee.


author: Carley, Judge.

text:
    74716.
    EARP v. KRANATS.
    (361 SE2d 217)
   Carley, Judge.

In November of 1979, appellee’s driver’s license was suspended in a final decision rendered by the Department of Public Safety (Department). In December of 1979, appellee filed a timely appeal to the superior court and, on appellee’s motion, the superior court ordered a stay of the license suspension pending the appeal. But see OCGA § 40-5-55 (e), which provides that such a stay is not to be issued. On February 21, 1980, the superior court entered an order which remanded the proceedings to the Department solely for the purpose of obtaining a clarification of the method of final agency review that had been employed. It is undisputed that the Department complied with the remand order and that, in March of 1980, the case was returned to the superior court for final resolution. However, no further action was taken in the case until August of 1986, when appellee requested that the superior court hold a hearing and rule on the merits of his appeal because he had received a demand that he surrender his driver’s license to appellant Commissioner of the Department. The superior court again ordered a stay of the Department’s suspension of appellee’s license pending disposition of the appeal. In response to appellee’s request for a hearing and a ruling, appellant asserted that appellee’s appeal had been automatically dismissed pursuant to OCGA § 9-2-60 (b). On February 9, 1987, the superior court entered an order, concluding that appellee’s appeal had not been dismissed pursuant to § 9-2-60 (b) and reversing the suspension of appellee’s license on the merits. Appellant’s application to this court for a discretionary appeal from the superior court’s order of February 9, 1987 was granted.

OCGA § 9-2-60 (b) provides that “[a]ny action or other proceeding filed in any of the courts of this state in which no written order is taken for a period of five years shall automatically stand dismissed. . . .” Between February of 1980 and August of 1986, no written order was entered in this case. OCGA § 9-2-60 (b) “is mandatory. It places upon a plaintiff who wishes to avoid an automatic dismissal of his case by operation of law a duty to obtain a written order of continuance or other written order at some time during a five-year period and to make sure the same is entered in the record. [Cits.]” Swint v. Smith, 219 Ga. 532, 534 (1) (134 SE2d 595) (1964). “The question is not waiver but jurisdiction. . . . [An automatic dismissal] results as a matter of law, and the court has no discretion to order it reinstated. [Cit.]” Salter v. Chatham County, 136 Ga. App. 914, 915 (2) (222 SE2d 638) (1975). Accordingly, if OCGA § 9-2-60 (b) is applicable, the superior court had no jurisdiction to address the merits of appellee’s appeal.

Appellee relies upon Jefferson v. Ross, 250 Ga. 817 (301 SE2d 268) (1983) as authority for the proposition that OCGA § 9-2-60 (b) is not a bar to the superior court’s entry of a final order addressing the merits of his appeal. In Jefferson, a jury verdict had been returned and all that remained for the trial court to do was to enter its judgment thereon, reflecting what had already been accomplished. It was held that the inherent power of the trial court to enter judgment oh a jury verdict was not extinguished by the passage of five years. See also Faircloth v. Cox Broadcasting Corp., 169 Ga. App. 914 (315 SE2d 434) (1984), wherein the belated entry of a default judgment was allowed under the same reasoning. Here unlike Jefferson, however, no jury verdict is or could be involved and the final order of February 9, 1987 does not purport merely to memorialize the previously accomplished disposition of appellee’s appeal. The superior court’s original remand of the proceedings to the Department was not itself a final order as to the merits of appellee’s appeal and is in no way analogous to a verdict in a jury trial. The remand was merely an interlocutory order to facilitate the superior court’s ultimate resolution of the case. See generally Howell v. Harden, 231 Ga. 594 (2) (203 SE2d 206) (1974). Notwithstanding the Department’s compliance with the remand order and the completion of the record for final judicial review by March of 1980, the superior court never addressed the merits of appellee’s appeal during the statutorially mandated five-year period. After February 21, 1980, the record shows that “ ‘(t)here was in fact complete nonaction so far as any ruling on any question was concerned.’ [Cit.]” Beck v. Dean, 177 Ga. App. 144, 146 (1) (338 SE2d 693) (1985).

Every court has the power “[t]o amend and control its processes and orders, so as to make them conformable to law and justice, and to amend its own records, so as to make them conform to the truth. . . .” OCGA § 15-1-3 (6). See also Savannah Iron &c. Corp. v. Mitchell, 168 Ga. App. 252 (308 SE2d 569) (1983). A trial court does not, however, have the power to reinstate a proceeding that, pursuant to OCGA § 9-2-60 (b), has been automatically dismissed by operation of law. Salter v. Chatham County, supra. It follows that the superior court in this case lacked jurisdiction to address the merits of appellee’s appeal and that the judgment of February of 1987 is a mere nullity and must be reversed. See generally International Longshoremen’s &c. Trust v. Saunders, 182 Ga. App. 301 (355 SE2d 461) (1987).

Decided September 11, 1987

Rehearing denied September 28, 1987.

Michael J. Bowers, Attorney General, Marion 0. Gordon, First Assistant Attorney General, Daryl A. Robinson, Senior Assistant Attorney General, Neal B. Childers, Assistant Attorney General, for appellant.

Robert F. Oliver, John 0. Bouwsma, for appellee.

Judgment reversed.

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


text:
    74592.
    THOMAS v. THE STATE.
    (361 SE2d 280)
   Benham, Judge.

This appeal is from appellant’s conviction of two counts of sale of cocaine and one count of trafficking in cocaine.

1. In several enumerations of error, appellant asserts that the evidence was insufficient to authorize his conviction. Testimony by police officers and by appellant’s co-indictee established that purchases of cocaine were twice arranged between an undercover officer and appellant’s co-indictee and that appellant sold the cocaine to his co-indictee on both occasions. Testimony by police officers who arrested appellant established that he ran from them when they identified themselves; that he threw away two items as he ran; and that they recovered the two items, one that night and the other the next morning. A witness from the State Crime Lab testified that the two containers identified as those thrown away by appellant before his arrest contained cocaine of 71 percent purity weighing approximately 55 grams. That evidence was sufficient to authorize a rational trier of fact to find appellant guilty beyond a reasonable doubt of the offenses charged. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); OCGA §§ 16-13-30 (b) and 16-13-31. As to sale of cocaine, see Bagby v. State, 178 Ga. App. 282 (9) (342 SE2d 731) (1986); as to trafficking in cocaine, see Recoba v. State, 179 Ga. App. 31 (2) (345 SE2d 81) (1986).

2. Appellant has enumerated as error the trial court’s refusal to permit him to represent himself at trial. After indictment, counsel was appointed for appellant. Appellant subsequently retained that same counsel. One week before trial, appellant fired that attorney and retained another. At trial, appellant expressed his dissatisfaction with that attorney, whereupon the trial court appointed another attorney to represent appellant and directed the second attorney appellant had retained to remain and assist the most recently acquired counsel. In addition, the trial court gave appellant extremely wide latitude in conducting portions of his defense. “While it may be error to deny one the right to defend his own cause [cit.] where the right was timely urged prior to trial [cit.], the defendant cannot frivolously change his mind in midstream. [Cit.]” Clark v. State, 145 Ga. App. 119 (2) (243 SE2d 97) (1978). Under the circumstances here, we find no error in the trial court’s decision on the issue of representation.

3. Contending that his counsel was unprepared, appellant asserts that the trial court erred in denying appellant’s motion for a continuance. “A motion for continuance is addressed to the sound discretion of the trial court, OCGA § 17-8-22, and this court will not interfere unless it is clearly shown that the court abused its discretion.” O’Neal v. State, 254 Ga. 1 (2) (325 SE2d 759) (1985). Under the circumstances enumerated in Division 2 of this opinion, and considering the statement of appellant’s retained counsel that he was prepared for trial, we find no abuse of discretion in the denial of appellant’s motion for a continuance.

4. Although no written motion to suppress evidence was filed, the trial court permitted an oral motion to be argued. The motion was directed at the fruits of a search of appellant’s daughter’s house. Appellant’s argument in support of his contention that the trial court improperly denied the motion is that there was not probable cause for the search. The affidavit in support of the application for the warrant pursuant to which the house was searched stated that the affiant had been told by a named law enforcement officer that he had twice purchased cocaine from appellant and that on a date four days before the application was filed, the officer had bought cocaine from appellant after appellant had gone into the premises to be searched for the purpose of securing cocaine. Using the “totality of the circumstances” test set out in Illinois v. Gates, 462 U. S. 213 (103 SC 2317, 76 LE2d 527) (1983) (see Mosley v. State, 180 Ga. App. 30 (1) (348 SE2d 555) (1986)), we find no error in the trial court’s ruling that the warrant was properly issued.

5. Appellant’s co-indictee, who had acted as a go-between in the transactions from which this case arose, testified for the State at trial. On cross-examination, defense counsel questioned the witness at length concerning the amount of money the undercover officer had given him for the purpose of buying cocaine, the price he had actually paid, and the disposition of the remainder of the funds. The obvious purpose of the questioning was to discredit the witness by showing that he had lied to the undercover officer about the price so that he could steal the difference. After establishing that the witness had pocketed the difference between what he was given and what he paid, defense counsel asked the witness whether he had done any construction work for appellant and, specifically, whether appellant had paid him for work he had not done. The witness admitted that he had been paid for work he had not done, but whenever defense counsel pressed him for the exact amount he was paid, he repeatedly replied that no money was involved. Again, the line of questioning was clearly designed to discredit the witness.

On recross-examination, the State was permitted, over a defense objection, to elicit from the witness the reason he was able to buy the cocaine for less than he charged the undercover officer and the manner in which the witness was paid for construction work. The first response was that appellant gave the witness a discount because of the numerous purchases the witness had made from him; the second was that appellant paid the witness in cocaine. Appellant enumerates as error the admission of that testimony, arguing that the State’s failure to comply with Rule 31.3 of the Uniform Rules for the Superior Courts rendered the testimony inadmissible.

While appellant is correct that the rule requires that the State give notice of evidence of similar transactions which will be offered in evidence at trial, there is an exception to the rule which we believe is applicable to this case. In paragraph (E) of the rule, the last sentence reads, “Nothing in this rule is intended to alter the rules of evidence relating to impeachment of witnesses.” The defense’s effort to discredit the witness was proper under the rule that “a party may show any fact or circumstance that might affect the credit of an opposing witness” (Arnold v. State, 163 Ga. App. 10 (4) (293 SE2d 501) (1982)); it is also proper, where testimony tending to discredit a witness has been drawn from him on cross-examination, to permit the witness to explain the matter. Benefield v. State, 140 Ga. App. 727 (5) (232 SE2d 89) (1976). The complained-of testimony being admissible under the rules relating to impeachment of witnesses, Rule 31.3 was inapplicable and there was no error in admitting the testimony.

6. Appellant argues that the trafficking charge is unrelated to the two sales charges and should have been severed for trial. “Where the joinder of offenses is based upon the same conduct or on a series of acts connected together or constituting part of a single scheme or plan, severance lies within the sound discretion of the trial judge, since the facts in each case are likely to be unique. In determining whether severance is necessary to fairly determine the defendant’s guilt or innocence of each offense, the court should consider whether in view of the number of offenses charged and the complexity of the evidence to be offered, the triers of fact will be able to distinguish the evidence and apply the law intelligently to each offense. [Cit.]” Grif fin v. State, 180 Ga. App. 682 (1) (350 SE2d 270) (1986). The offenses here were simple, the evidence was direct and uncomplicated, two of the offenses were obviously related as part of a continuous course of criminal conduct, and the third offense occurred as appellant was being arrested for the first two. Under those circumstances, we find no abuse of discretion in the trial court’s refusal to sever the offenses for trial.

Decided September 28, 1987.

J. D. Thomas, pro se.

Willis B. Sparks III, District Attorney, Robin B. Odom, Assistant District Attorney, for appellee.

7. Whether to allow sequestered voir dire, as appellant requested in this case, is a matter within the discretion of the trial judge. Thomas v. State, 248 Ga. 247 (4) (282 SE2d 316) (1981). Having provided no more than generalized assertions of harm, appellant has not demonstrated such an abuse of discretion as would warrant reversal on that ground, and we find no error.

8. Remaining assertions of error have either been abandoned by failure to argue them or are wholly without support in fact or law.

Judgment affirmed.

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


text:
    74508.
    ACKER v. THE STATE.
    (361 SE2d 509)
   Carley, Judge.

By accusation, appellant was charged with simple battery. On March 13, 1986, following acceptance of appellant’s plea of nolo contendere, the trial court imposed a sentence of twelve months which was to be suspended upon appellant’s compliance with certain enumerated conditions. In October of 1986, the State petitioned for the revocation of appellant’s suspended sentence. The trial court conducted a hearing and ordered the continuation of appellant’s “indefinite” suspended sentence. Appellant appeals from the trial court’s order continuing his “indefinite” suspended sentence.

A trial court is authorized, in its discretion, to probate or suspend criminal sentences. However, “[t]he period of probation or suspension shall not exceed the maximum sentence of confinement which could be imposed on the defendant, except as provided in subsection (d) of this Code section.” (Emphasis supplied). OCGA § 42-8-34 (c). Subsection (d) of OCGA § 42-8-34 relates solely to cases of abandonment and is inapplicable to the case at bar. Compare Jones v. State, 166 Ga. App. 277 (304 SE2d 541) (1983); Turnipseed v. State, 147 Ga. App. 735 (250 SE2d 186) (1978). Accordingly, appellant’s suspended sentence, which was imposed in March of 1986, was not “indefinite.” By its terms, that sentence was for twelve months and it would, at the latest, have run no later than March of 1987.

Decided September 9, 1987

Rehearing denied September 18, 1987.

Harold N. Acker, pro se.

Lindsay A. Tise, Jr., District Attorney, for appellee.

During the period that appellant’s suspended sentence was running “in accordance with its own terms, [the trial court was authorized to] revoke the suspension and require that the remainder be served within a penal institution.” (Emphasis supplied.) Cross v. State, 128 Ga. App. 774, 775 (1) (197 SE2d 853) (1973). It necessarily follows that the trial court would likewise only be authorized to order a continuation of “the remainder” of appellant’s suspended sentence. Accordingly, the trial court’s order, insofar as it purports to continue appellant’s “indefinite” suspended sentence, is erroneous and must be reversed.

Judgment reversed.

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


author: McMurray, Presiding Judge.

text:
    74660.
    JOINT CITY-COUNTY BOARD OF TAX ASSESSORS v. TUROFF.
    (361 SE2d 528)
   McMurray, Presiding Judge.

The Superior Court of Fulton County dismissed an appeal by the Joint City-County Board of Tax Assessors because the appeal was not heard by a jury at the first term following the filing of the appeal.

On June 11, 1985, the Joint City-County Board of Tax Assessors filed a notice of appeal in the Superior Court of Fulton County from an adverse decision of arbitrators concerning the valuation of certain property. In pertinent part, the notice of appeal read: “Plaintiff hereby requests that this action receive preference on the jury trial Calendar pursuant to Georgia Laws 1969, p. 942, which requires an appeal from an arbitrator’s decision to be heard before a jury at the first term following the filing of the appeal.” On October 10, 1985, the matter appeared on a non-jury trial calendar. At that time, counsel for the board of tax assessors informed the clerk of the superior court that the matter was to be tried before a jury. Thereafter, on January 30, 1986, when the case was called for trial before a jury the taxpayer moved to dismiss on the ground that the board of tax assessors failed to obtain trial at the first term of court. The motion was granted and this appeal followed. Held:

Decided September 28, 1987.

Marva Jones Brooks, Gary S. Walker, Jeff S. Klein, for appellant.

John L. Tur off, pro se.

1. Georgia Laws 1969, p. 942, provides, in part: “The taxpayer or the board of tax assessors may appeal the arbitrator’s decision to the superior court of the county in which the land lies . . . The appeal shall constitute a de novo action and shall be heard before a jury at the first term following the filing of the appeal.”

2. “It being the express command of the statute that appeal cases be tried by a jury at the first term after the appeal has been entered, it would appear the duty of the clerk to place the same upon the trial calendar for the first term after docketing. If it cannot be reached at that term, or should the court otherwise defer the matter, neither party should be penalized because it has not been reached. Counsel for neither party can control the calendars and trial of cases. Such procedures are in the hands of the court, not counsel. While it is true that under Code Ann. § 81A-140 (c) [OCGA § 9-11-40 (c)] the courts may place cases on the trial calendar on notice to the parties, they must also do so upon request of a party. We find nothing in the law that places a greater burden upon one party than the other.” Etheridge v. Etheridge, 242 Ga. 101, 103 (249 SE2d 569). Accord McCauley v. Bd. of Tax Assessors, 243 Ga. 844 (257 SE2d 266).

3. Although the public has an interest in the speedy resolution of tax assessment cases, we think the board of tax assessors met the statutory requirements of Ga. L. 1969, p. 942, by requesting a jury trial at the first term in its notice of appeal. See McCauley v. Bd. of Tax Assessors, 243 Ga. 844, supra at 846. Compare Harvey v. Lissner, 124 Ga. App. 448 (184 SE2d 184), wherein the board of tax assessors failed to request that the appeal be given preference on the trial calendar.

Judgment reversed.

Sognier and Beasley, JJ., concur.


text:
    74738.
    BRYANT v. GENERAL MOTORS ACCEPTANCE CORPORATION.
    (361 SE2d 529)
   McMurray, Presiding Judge.

Plaintiff brought this action against defendant seeking a deficiency judgment following the voluntary repossession and resale of an automobile (a 1984 Pontiac Fiero) for less than the amount of defendant’s indebtedness to plaintiff. Defendant defends on the ground that the disposition of the automobile was not conducted in a commercially reasonable manner.

Following discovery, plaintiff moved for summary judgment. In support of its motion, plaintiff submitted the affidavit of Charles R. Shriver, its special collections manager. In pertinent part, Mr. Shriver deposed: “I frequently have occasion to appraise the value of repossessed vehicles based upon the written report of the vehicles condition at the time of repossession . . . On March 7, 1985, GMAC sold the vehicle to the highest bidder at a private sale for the cash price of $5,038.00 ... In my opinion the resale price of $5,038.00 represents the reasonable value of the vehicle in its condition at the time of repossession.” The written report of the condition of the automobile was attached to the affidavit. (It was averred that the report was a business record and that the transactions noted thereon were made at or near the time at which they occurred. The report was made on February 4, 1985.)

With regard to the condition of the automobile, the report set forth specifics. A rating was assigned to all parts of the vehicle: from the grille to the trunk, from the finish to the upholstery, from the battery to the transmission. According to the report, the automobile would not start. Most of the parts were in fair or poor condition. Moreover, the interior of the automobile, including the upholstery, showed “excessive wear.”

In opposition to plaintiff’s summary judgment motion, defendant filed her own affidavit in which she deposed, in part: “When the car was returned ... on January 28, 1985, it was in generally good condition. It had been washed and waxed on the outside, and the interior had been cleaned very carefully. There was [sic] no torn places or obviously worn places on any of the interior upholstery. The car was running good and gave me no problem in starting.”

After considering the pleadings and affidavits, the trial court granted plaintiff’s motion for summary judgment. Judgment was entered in favor of plaintiff and against defendant in the amount of $3,189.79, the difference between defendant’s indebtedness and the selling price of the automobile. Defendant appealed. Held:

1. “Where the commercial reasonableness of a sale is challenged by the debtor, the party holding the security interest has the burden of proving that the terms of the sale were commercially reasonable and that the resale price was the fair and reasonable value of the collateral. The secured party must also prove the value of the collateral at the time of repossession and that the value of the goods does not equal the value of the debt. If this proof is not forthcoming, it is presumed that the value of the goods is equal to the amount of the debt. Granite Equip. Leasing Corp. v. Marine Dev. Corp., 139 Ga. App. 778 (230 SE2d 43) (1976).” Richard v. Fulton Nat. Bank, 158 Ga. App. 595, 596 (281 SE2d 338).

Decided September 28, 1987.

Michael L. Murphy, for appellant.

2. “Opinion evidence as to the value of an item, in order to have probative value, must be based upon a foundation that the witness has some knowledge, experience or familiarity with the value of the property in question or similar property and he must give reasons for the value assessed and also must have had an opportunity for forming a correct opinion. [Cits.]” Sisk v. Carney, 121 Ga. App. 560, 563 (174 SE2d 456).

3. “Market value is exclusively a matter of opinion even though expressed as a fact. It may rest wholly or in part upon hearsay, provided the witness has had an opportunity of forming a correct opinion.” Schoolcraft v. DeKalb County, 126 Ga. App. 101, 103 (2) (189 SE2d 915). Accord Apostle v. Prince, 158 Ga. App. 56, 57 (1) (279 SE2d 304).

4. In the case sub judice, the burden is on plaintiff to prove the value of the automobile at the time of repossession. Richard v. Fulton Nat. Bank, 158 Ga. App. 595, supra. Plaintiff attempts to carry this burden with the affidavit of its special collections manager. He can base his opinion wholly or in part upon hearsay so long as he has had an opportunity to form a correct opinion. Schoolcraft v. DeKalb County, 126 Ga. App. 101, 103 (2), supra. In this respect, the affidavit of the special collections manager fails. The special collections manager based his value opinion upon a February 4, 1985, report showing the automobile to be inoperative and its interior and upholstery to be excessively worn. Defendant’s affidavit shows that she voluntarily surrendered possession of the automobile on January 28,1985. She states that at that time the vehicle was in good condition. It had no trouble starting and its interior and upholstery were not worn excessively.

It is apparent that the special collections manager did not have an opportunity to form a correct opinion as to the value of the automobile at the time of repossession. He relied on a written report which set forth the condition of the automobile one week after it was repossessed. Moreover, defendant’s affidavit calls into question the accuracy of the information upon which the special collections manager relied. It follows that plaintiff failed to carry its burden of showing the value of the automobile at the time of repossession. The trial court erred in granting plaintiff’s motion for summary judgment.

Judgment reversed.

Sognier, J., concurs. Beasley, J., concurs in the judgment only.

Michael D. Payne, Gregson T. Haan, for appellee.


author: Beasley, Judge.

text:
    74744.
    NORTHBROOK PROPERTY & CASUALTY INSURANCE COMPANY v. CITIZENS & SOUTHERN NATIONAL BANK.
    (361 SE2d 531)
   Beasley, Judge.

Northbrook Property and Casualty Insurance Company, as subrogee of Devin Management Company, Inc., brought suit against the Citizens and Southern National Bank seeking damages in the amount of $75,805.89. The complaint alleged that Devin’s employee, Patricia Ferguson, from 1980 to 1983 cashed numerous unauthorized checks drawn by her on Devin’s account and payable to fictitious individuals; that she fraudulently indorsed those checks and presented them to C & S; that C & S negligently accepted the checks and without further inquiry or authorization paid the funds to Patricia Ferguson in contravention of accepted banking practices and in violation of its contractual obligation to its depositors.

C & S moved for partial summary judgment based upon the following stipulation by the parties. Patricia Ferguson, Devin’s office manager and bookkeeper, was authorized to sign the checks on behalf of the maker, Devin, and all checks for which recovery is sought were signed on Devin’s behalf by her. Of the total sought of $75,805.89, checks totaling $1,892 were made payable to Patricia Ferguson or cash and $1,673 were valid or legitimate items which Devin intended to be paid. The controversy centers on checks in the amount of $71,289 which were made payable to fictitious persons or to actual persons who were not intended by Patricia Ferguson to have any interest in the items. During the time in question 369 checks were presented to branches of C & S for cashing, only 11 of which bore Patricia Ferguson’s indorsement (the others were indorsed in the payee’s name). C & S was informed of Devin’s claim in February 1983.

The trial court granted C & S’s motion for partial summary judgment finding OCGA § 11-3-405 to be controlling. Northbrook appeals to this court and contends that although OCGA § 11-3-405 is applicable, the fictitious payee/padded payroll defense contained therein is not absolute but should further involve the issue of whether the drawee bank was negligent in accepting forged items from an employee of the drawer.

As stated in the briefs, this is a question of first impression in Georgia. OCGA § 11-3-405 (b) and (c) (adopted from the Uniform Commercial Code) states: “An indorsement by any person in the name of a named payee is effective if: ... A person signing as or on behalf of a maker or drawer intends the payee to have no interest in the instrument; ... or An agent or employee of the maker or drawer has supplied him with the name of the payee intending the latter to have no such interest.”

Anderson, Uniform Commercial Code, p. 163 § 3-405.3 points out that Code § 3-405 “permits anyone to indorse paper made payable to a fictitious person or to one who was not intended to ácquire any interest in the paper. The purpose of § 3-405 is to promote negotiability and foster the commercial reliability of paper. The rationale of UCC § 3-405 is that the employer-drawer should bear the loss caused by his dishonest employee rather than thrusting it upon the drawee bank.” (Indentions omitted.)

The Official Code Comment to U.C.C. § 3-405 explains that the test of subsection (1) (b) “is not whether the named payee is ‘fictitious,’ but whether the signer intends that he shall have no interest in the instrument. The following situations illustrate the application of the subsection, (a) The drawer of a check, for his own reasons, makes it payable to P knowing that P does not exist. . . . (c) The drawer makes the check payable to P, an existing person whom he knows, intending to receive the money himself and that P shall have no interest in the check, (d) The treasurer of a corporation draws its check payable to P, who to the knowledge of the treasurer does not exist, (e) The treasurer of a corporation draws its check payable to P. P exists but the treasurer has fraudulently added his name to the payroll intending that he shall not receive the check.” (Indentions omitted.)

Thus, a loss from the activities of a faithless employee must be borne by the employer rather than the drawee bank. This is accomplished by making the indorsement effective even though it is unauthorized. “The principle followed is that the loss should fall upon the employer as a risk of his business enterprise rather than upon the subsequent holder or drawee. The reasons are that the employer is normally in a better position to prevent such forgeries by reasonable care in the selection or supervision of his employees, or, if he is not, is at least in a better position to cover the loss by fidelity insurance; and that the cost of such insurance is properly an expense of his business rather than of the business of the holder or drawee.” Official Code Comment, U.C.C. § 3-405.

An overwhelming majority of the jurisdictions confronted with this issue have recognized the import of the code section to be that any loss arising from situations provided for therein should fall upon the employer and negligence on the part of the bank is irrelevant. Only bad faith by a bank prevents invoking the code section to defeat a claim. See, e.g., City of Phoenix v. Great Western Bank, 148 Ariz. 53 (712 P2d 966) (1985); M & K Corp. v. Farmers State Bank, 496 NE2d 111 (Ind. Ct. App. 1986); McCarthy, Kenney & Reidy v. First Nat. Bank of Boston, 2 U.C.C. Rep. Serv.2d 977 (Mass. Super. Ct. 1986); Consol. Public Water Supply v. Farmers Bank, 686 SW2d 844, 851 (Mo. Ct. App. 1985); Western Casualty &c. Co. v. Citizens Bank of Las Cruces, 676 F2d 1344 (10th Cir. 1982); Merrill Lynch &c. v. Chemical Bank, 57 NY2d 439 (456 NYS2d 742, 442 NE2d 1253) (1982); Braswell Motor Freight Lines v. Bank of Salt Lake, 28 Utah 2d 347 (502 P2d 560) (1972).

Decided September 28, 1987.

Peter K. Kintz, for appellant.

Vickie Cheek Dorsey, for appellee.

Northbrook asks that we choose the minority position which is now viable in only one jurisdiction, California. See E. F. Hutton & Co. v. City Nat. Bank, 149 Cal. App. 2d 60 (196 Cal. Rptr. 614) (1983) . Some strong policy arguments have been proffered in support of this position. An excellent articulation of these concerns is found in the special concurrence by Judge Cooke in Merrill Lynch &c. v. Chemical Bank, supra at p. 448. But these policy considerations are for the legislature. We are charged solely with construing the statutory language. We come to the same result finally reached by Judge Cooke that the code section makes no provision for negligence by the bank. Fortification for this plain meaning construction is implicit from the tenor of the U.C.C. In those situations where negligence is a factor, it invariably expressly appears in the section involved.

We therefore adopt the construction called for by the official comment and recognized by the near unanimous majority of other states which have considered the issue. Northbrook cannot recover because of mere negligence on the part of C & S. Cf. Bank South v. Grand Lodge, 174 Ga. App. 777, 780 (1) and 781 (2) (331 SE2d 629) (1985).

Judgment affirmed.

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


text:
    74955.
    JONES v. THE STATE.
    (361 SE2d 693)
   McMurray, Presiding Judge.

Defendant was convicted of trafficking in cocaine. He appeals, enumerating error upon the denial of his motion to suppress. Held:

“[T]he trial court’s decision on questions of fact and credibility at a suppression hearing must be accepted unless clearly erroneous. [Cits.]” Woodruff v. State, 233 Ga. 840, 844 (213 SE2d 689). In the case sub judice, the testimony of defendant was in conflict with that of the arresting officer. Nevertheless, the evidence was more than sufficient to authorize the trial court’s finding that the contraband seized from defendant was not seized illegally and that he consented freely and voluntarily to the search of his person and personal belongings.

Decided September 28, 1987.

Steven E. Lister, for appellant.

Robert E. Keller, District Attorney, for appellee.

The arresting officer testified that defendant was approached in the concourse (at the Atlanta airport) in a non-threatening manner and that defendant was questioned about his identity and itinerary. The officer asked (but did not demand) to see defendant’s identification and plane ticket. This testimony demonstrates that defendant had no objective reason to believe he was not free to terminate the encounter and proceed on his way. Voight v. State, 169 Ga. App. 653, 654 (314 SE2d 487).

The arresting officer also testified that defendant voluntarily gave his consent to the search of his person and his carry-on luggage. He averred that he asked defendant if he would consent to a search of his person and personal property and that defendant responded “okay.” He then inquired whether defendant desired the search to take place in the concourse or in private. Defendant expressed his preference for a privately conducted search. In a private room, defendant was read his rights regarding consent searches. He was advised that if illegal objects were found in the search, they could be used against him in court. He was also advised that he could permit or refuse a search of his person and personal property and that he could consult with an attorney before making his decision. Initially, defendant indicated that he did not understand his rights and he asked the arresting officer to read them again. The officer read defendant his rights a second time and he asked defendant if he understood them. Defendant replied, “Yeah, go ahead.” A search of defendant’s carry-on luggage revealed a plastic bag containing a white powdery substance (later identified as mannitol). Cocaine was found in a search of defendant’s person.

The testimony of the arresting officer shows that defendant was not subjected to any duress or coercion. He freely, voluntarily and intelligently consented to the search of his person and his personal belongings. Del Rio v. State, 171 Ga. App. 381, 384 (3) (320 SE2d 236).

Judgment affirmed.

Sognier and Beasley, JJ., concur.


author: Birdsong, Chief Judge.

text:
    74965.
    RIGSBY v. THE STATE.
    (361 SE2d 694)
   Birdsong, Chief Judge.

Appellant Gary Dale Rigsby was tried and found guilty of armed robbery. He appeals on the general grounds and also asserts error in the jury charge. Held:

1. The evidence showed that two persons entered W. R. Thomas Jewelry Company in Atlanta and asked to see diamond rings. It was discovered the store did not have the ring asked for, and the two men were requested to return the next day. They did so, and proceeded to rob the store, at gunpoint, of merchandise valued at $80,000. Three employees observed and were victims of the robbery. Following a description given, the police settled upon appellant and another person as the suspects and nearly eight months after the robbery exhibited a photographic lineup to the witnesses. Two witnesses identified appellant and the other suspect; the other witness positively identified the older suspect but could only narrow the younger robber to two photographs, one of which was of appellant. At trial, all three witnesses identified appellant as the younger robber.

The appellant contends the verdict cannot be sustained because it is based only upon eyewitness identification. This assertion is patently without merit. There is no allegation that the photographic lineups were impermissibly suggestive. See Jones v. State, 251 Ga. 361, 362 (306 SE2d 265); Robinson v. State, 180 Ga. App. 248 (348 SE2d 761). As to the credibility of witnesses being a jury question generally, see Smith v. State, 168 Ga. App. 148 (308 SE2d 429); Gamble v. State, 160 Ga. App. 556 (287 SE2d 593); esp. with regard to identification, see Hayslip v. State, 154 Ga. App. 835, 836 (270 SE2d 61). Moreover, applying the factors considered in Neil v. Biggers, 409 U. S. 188 (93 SC 375, 34 LE2d 401) under an allegation of suggestibility, although such is not made in this case, we find that even under those strict standards there was no likelihood of misidentification. See Dudley v. State, 179 Ga. App. 252, 254 (345 SE2d 888). The three witnesses had ample view of the robbers during the robbery and on the day before, gave close descriptions, and demonstrated a high level of certainty in the lineup identifications; and all three identified appellant at trial with certainty. Moreover, the fact that eight months after the event two of the witnesses identified appellant in a photographic lineup and one witness identified appellant as one of two suspects, might be found by the jury as rather more credible and certain, than less.

The evidence is such that a rational trier of fact could find guilt of the appellant beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560); Turner v. State, 151 Ga. App. 169, 170 (259 SE2d 171).

Decided September 28, 1987.

Kenneth D. Feldman, for appellant.

Thomas J. Charron, District Attorney, Nancy I. Jordan, Assistant District Attorney, for appellee.

2. Appellant takes exception to the trial court’s refusal to charge as requested that “the presumption of innocence is in the nature of evidence on behalf of the accused.” (Emphasis supplied.) This enumeration is without merit. The trial court charged the appellant was entitled to the presumption of innocence. The charge was full, fair and complete. Schuh v. State, 150 Ga. App. 700, 702 (258 SE2d 328). The language requested, emphasized above, was used in Coffin v. United States, 156 U. S. 432, 458 (15 SC 394, 39 LE 481) in a legalistic discussion of the concept of the presumption of innocence, but was not intended to be required in a jury charge. See Hill v. State, 256 Ga. 614, 615 (351 SE2d 451). It is not essential to the jury’s understanding of the principle and is arguably very obscure and overly narrow in meaning; moreover, it might be seen by a jury as limiting the defendant’s right to the presumption in some cases depending on the nature of the evidence. We hope this lays to rest the general question that might be raised in future appeals as to the propriety and necessity of quoting Coffin verbatim in a jury charge.

Judgment affirmed.

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


text:
    75543, 75714.
    ROTTENBERG et al. v. THE STATE (two cases).
    (361 SE2d 533)
   Sognier, Judge.

Appellant Harold Rottenberg was convicted of two counts of violating the Georgia Controlled Substances Act by trafficking in cocaine and having cocaine under his control. Appellants Sterling Turpin and Donna Taylor were convicted of violating the Georgia Controlled Substances Act by having cocaine under their control. Appellants have filed a joint appeal from their convictions.

1. In their first enumeration of error in Case No. 75543, appellants contend the trial court erred by denying their motion to suppress evidence. They argue that because the officer who obtained a search warrant was not a certified police officer, he had no authority to obtain a search warrant, and evidence obtained as a result of that warrant was inadmissible.

OCGA § 17-5-20 provides: “A search warrant may be issued only upon the application of an officer of ths state or its political subdivisions charged with the duty of enforcing the criminal laws. A search warrant shall not be issued upon the application of a private citizen or for his aid in the enforcement of personal, civil, or property rights.”

Decided September 28, 1987.

John A. Nuckolls, for appellants.

Darrell E. Wilson, District Attorney, for appellee.

Although the trial court found that Larry Hutson, the officer who applied for the search warrant involved in this case, was not a certified police officer, the trial court denied appellants’ motion to suppress. Holstein v. State, 183 Ga. App. 610, 611 (359 SE2d 360) (1987), involved co-defendants of appellants here who were tried separately. In Holstein we held: “Due to Hutson’s lack of certification, he had no authority to apply for a search warrant, and the evidence seized pursuant to the execution of the illegal warrant should have been suppressed.” Since the same warrant was involved in both cases, Holstein is controlling and is dispositive of the issue raised here. Accordingly, we hold that it was error to deny appellants’ motion to suppress, and their convictions based on the admission into evidence of such illegally seized evidence must be reversed.

2. In view of our decision in Division 1, we need not consider appellants’ remaining enumerations of error in Case No. 75543.

3. Appellants also filed an appeal from denial of bond in Case No. 75714. In view of our decision in Division 1 reversing appellants’ convictions, this issue is now moot.

Judgment reversed in Case Number 75543. Appeal dismissed in Case Number 75714.

McMurray, P. J., and Beasley, J., concur.


text:
    75055.
    McLENDON v. THE STATE.
    (361 SE2d 534)
   Benham, Judge.

Appellant was convicted of burglary. On appeal he raises the general grounds and challenges the admission into evidence of a similar crime. We affirm.

1. The evidence adduced at trial was that on May 16, 1986, at 5:00 a.m., appellant forced open the kitchen window of the victim’s ground floor apartment, entered the apartment without permission, and stole a pair of men’s pants and a woman’s purse containing $100. One of the victims saw appellant fleeing the apartment and described him to the other victims and the police. Four days later, appellant returned to the scene of the crime and the victims saw him and apprehended him. The evidence was sufficient to enable a rational trier of fact to find appellant guilty beyond a reasonable doubt of burglary. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); Miller v. State, 180 Ga. App. 525 (1) (349 SE2d 495) (1986).

Decided September 28, 1987.

Sheila Tyler, for appellant.

Lewis R. Slaton, District Attorney, David Wright, H. Allen Moye, Assistant District Attorneys, for appellee.

2. During the trial, the State sought to admit evidence of a similar burglary appellant committed in 1974. Appellant objected, arguing that the act was too remote in time to be admissible. The trial court properly allowed the evidence to be admitted, relying on Milton v. State, 245 Ga. 20 (262 SE2d 789) (1980); and Barnes v. State, 157 Ga. App. 582 (277 SE2d 916) (1981), which held that the remoteness of time factor is one that goes to the weight and credibility the jury gives to the evidence, and not to its admissibility. Since the earlier crime was almost identical to the one committed 12 years later, we find no error in its admission into evidence.

Judgment affirmed.

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


text:
    74345.
    MOTE v. THE STATE.
    (361 SE2d 523)
   McMurray, Presiding Judge.

Defendant appeals from his conviction of the offense of child molestation. Held'.

1. In his first enumeration of error defendant contends the trial court erred in the instructions given on good character.

The court gave the following charge on good character: “Now members of the jury, I charge you that in criminal cases the defendant is allowed, if he sees fit to do so, to offer evidence as to his general good character and when such evidence is offered, it is the duty of the jury to take that testimony along with all other testimony in the case in determining the guilt or innocence of the accused. Good character is a positive, substantiate act [sic] and of itself may be sufficient to generate in the minds of the jury a reasonable doubt as to the guilt of the accused. It is the duty of the jury to take any evidence of general good character along with all the other evidence in the case, and if in doing so, the jury should entertain a reasonable doubt as to the guilt of the defendant, they should acquit him. Nevertheless, if the jury should believe the defendant guilty beyond a reasonable doubt, it would be your duty to convict, notwithstanding the evidence as to general good character." (Emphasis supplied.)

Defendant argues the emphasized language of the above charge was erroneous in that it negated the trial court’s earlier instruction that the defendant’s good character could be considered “in determining the guilt or innocence of the accused.” This argument was raised with regard to virtually the same language of the jury instruction on good character in Morrow v. State, 166 Ga. App. 883, 885 (3) (305 SE2d 626), and this court held: “ [I]t has oft been held that good character affords no license for committing a crime, and it is entirely proper to charge the jury that they would be authorized to convict, notwithstanding proof of good character, if upon consideration of all the evidence they believe the defendant guilty beyond a reasonable doubt. See Nunnally v. State, 235 Ga. 693, 704 (8) (221 SE2d 547) (1975); Favors v. State, 228 Ga. 196 (3) (184 SE2d 568) (1971); Brazil v. State, 117 Ga. 32, 37 (3) (43 SE 460) (1902); Sims v. State, 84 Ga. App. 753, 756 (67 SE2d 254) (1951). The charge given by the court was an accurate statement of the law which fairly embodied the principles contained in the appellant’s requested charge on the issue; consequently, it affords no ground for reversal of the conviction. See generally Hall v. State, 243 Ga. 207, 211 (7) (253 SE2d 160) (1979).” For the same reasons in the case sub judice, we find this enumeration of error to be without merit.

Decided September 15, 1987

Rehearing denied September 29, 1987.

William J. Sussman, for appellant.

Sam B. Sibley, Jr., District Attorney, Charles R. Sheppard, Assistant District Attorney, for appellee.

2. Next, defendant contends the trial court erred in failing to charge the jury on circumstantial evidence. “Such an instruction is required only when the case is totally dependent upon circumstantial evidence. Lee v. State, 177 Ga. App. 8, 9 (2b) (338 SE2d 445) (1985).” Dowdell v. State, 180 Ga. App. 250, 251 (2) (349 SE2d 10). In the case sub judice, there was direct testimony from the 9-year-old victim describing acts committed by defendant which constituted the offense of child molestation. Since each and every element of the crime of child molestation was shown by direct evidence, this enumeration of error is meritless. See Lee v. State, 177 Ga. App. 8, 9 (2b), supra.

Judgment affirmed.

Sognier and Beasley, JJ., concur.


text:
    74383.
    KARAFOTIAS v. COYNE.
    (361 SE2d 514)
   Pope, Judge.

This appeal is from the trial court’s denial of appellant/dentist’s motion for summary judgment in this dental malpractice action. We granted appellant’s petition for interlocutory appeal to consider whether she is entitled to summary judgment by virtue of the one-year statute of limitation contained in OCGA § 9-3-72 applicable to foreign objects left in a patient’s body.

On January 11, 1984 appellant performed a root canal on appellee. During the course of this procedure a file broke off in appellee’s tooth. Appellant attempted to cure the problem and directed appellee to contact her the next day if the problem persisted. Appellee returned to appellant’s office the next day where appellant “took care of [him], said everything was fine,” and told him she had gotten the file out of the tooth. After a while the pain returned and in September of 1984 appellee consulted a different dentist who discovered that the file was still embedded in the tooth and so informed appellee. Appellee instituted this lawsuit on April 11, 1986.

The trial court found a question of fact as to whether fraud had been perpetrated on appellee by appellant’s representation that all the file had been removed from his tooth. The court found: “If fraud in fact existed, as determined by the trier of fact, the statute of limitation under OCGA § 9-3-96 would commence to run on that date and this action would be timely filed and OCGA § 9r3-72 dealing with foreign bodies would be inapplicable.” Held:

The trial court’s order implies the existence of a separate cause of action for fraud, yet the complaint in this case alleges only a malpractice claim based upon negligence. Further, the only evidence of fraud of record relates to the tolling of the statute of limitation (OCGA § 9-3-96) and not to a separate cause of action. See generally Shipman v. Horizon Corp., 245 Ga. 808 (267 SE2d 244) (1980); see also Piedmont Pharmacy v. Patmore, 144 Ga. App. 160 (3) (240 SE2d 888) (1977). Accordingly, we find no basis for the trial court’s holding that this action would be timely filed if fraud were found to exist. We also find erroneous the court’s conclusion that OCGA § 9-3-72 would be inapplicable to this case if fraud were established. Rather, the issues in the case at bar are controlled by the holding in Hamrick v. Ray, 171 Ga. App. 60 (318 SE2d 790) (1984), which we cite at length:

“The trial court clearly erred in denying [appellant’s] motion for summary judgment as to liability for the alleged negligent act of embedding a [file] in appellee’s tooth. OCGA § 9-3-72 provides: ‘The [limitation] of Code Section 9-3-71 shall not apply where a foreign object has been left in a patient’s body, but in such a case an action shall be brought within one year after the negligent or wrongful act or omission is discovered. For purposes of this Code section, the term “foreign object” shall not include a chemical compound, fixation device, or prosthetic aid or device.’ OCGA § 9-3-71 provides: ‘Except as otherwise provided in this article, an action for medical malpractice shall be brought within two years after the date on which the negligent or wrongful act or omission occurred.’

“ ‘Where a physician places a foreign object in his patient’s body ... he has actual knowledge of its presence. His failure to remove it goes beyond ordinary negligence so as to be classified by the legislature (in OCGA § 9-3-72) as a continuing tort which tolls the statute of [limitation] until the object is discovered. The purpose of the legislature in making a distinction between the two types of medical malpractice was to allow the plaintiffs claim which does not rest on professional diagnostic judgment or discretion to survive until actual discovery of the wrongdoing.’ Dalbey v. Banks, 245 Ga. 162, 163-164 (264 SE2d 4) [(1980)]. It is clear that OCGA § 9-3-72, and not OCGA § 9-3-71, is applicable to any action based upon an act of malpractice involving the placing of a foreign object in a patient’s body. See Ivey v. Scoggins, 163 Ga. App. 741 (295 SE2d 164) [(1982)]. Inasmuch as this action was filed in excess of one year after appellee’s admitted discovery of the presence of the [file, appellant] can incur no liability arising from the alleged negligent act of embedding the [file] in appellee’s tooth. . . .

“We also reject appellee’s contention that [appellant’s alleged fraudulent concealment of the continued presence of the file in appellee’s tooth] constituted a separate act of malpractice not subject to OCGA § 9-3-72. Pursuant to OCGA § 9-3-72, the failure to inform a patient of the presence of a foreign object left by the physician merely tolls the one-year statute of limitation until the time at which the patient discovers the presence of the object. [Likewise, fraud by a physician pursuant to OCGA § 9-3-96 which debars or deters a patient from bringing an action merely tolls the one-year statute of limitation of § 9-3-72 until discovery of same.] The failure to inform the patient of the presence of the object in [either] context does not constitute a separate act of malpractice. A contrary holding would emasculate OCGA § 9-3-72 and render it inapplicable to the cases for which it was specifically designed, i.e., those cases in which the patient is not informed of the presence of the object until sometime after the act of malpractice giving rise to the claim.” Hamrick v. Ray, 171 Ga. App. at 61, 62, supra. The record compels the grant of appellant’s motion for summary judgment.

Decided September 11, 1987

Rehearing denied September 29, 1987.

Palmer H. Ansley, David A. Sapp, for appellant.

Therese L. Glisson, for appellee.

Judgment reversed.

Birdsong, C. J., and Deen, P. J., concur.

       The effect, if any, on this case of the 1985 amendment to OCGA §§ 9-3-71 and 9-3-72 (Ga. L. 1985, p. 556, § 3) has not been raised or addressed in this court or the court below and thus provides no basis for our opinion. See in this regard Stafford v. Quinn, 183 Ga. App. 227 (358 SE2d 619), revd._Ga._(Case No. 44760, decided November 19, 1987).


text:
    74482.
    KELLY v. THE STATE.
    (361 SE2d 659)
   Pope, Judge.

Jesse Edward Kelly brings this appeal from his conviction and sentence of violating the Georgia Controlled Substances Act by possessing cocaine and marijuana. Held:

1. Defendant’s first three enumerations of error challenge the denial of his motion to suppress the subject cocaine and marijuana, which were seized from his residence pursuant to a search warrant. Defendant contends that the three alleged errors effectively invalidated the warrant. We disagree.

(a) The first paragraph of the handwritten affidavit for the search warrant, described as being prepared “for a Long County judge,” erroneously describes defendant’s residence as being located in McIntosh County. However, the affidavit also gives directions to the premises by reference to the high school in Ludowici (located in Long County) and further states that during the affiant’s independent investigation of the confidential informant’s tip (upon which the affidavit was based) he observed the subject premises “in Long County, Ludowici, Georgia.” The warrant itself directs the search to defendant’s residence in Long County. The affiant, Special Agent Fischette of the Georgia Bureau of Investigation (GBI), testified at the hearing on the motion to suppress that the reference to McIntosh County was a scrivener’s error.

“ ‘In testing the sufficiency of the affidavit, it is entitled to be read as a whole. It would therefore seem to be enough that the affidavit contain within its four corners the information necessary to justify and to enable the search warrant to be issued.’ [Cit.]” Driscoll v. State, 129 Ga. App. 702, 704 (201 SE2d 11) (1973). “ ‘A premises description is sufficient if on its face it enables a prudent officer executing the warrant to locate the person and place definitely and with reasonable certainty.’ [Cit.]” State v. Sanders, 155 Ga. App. 274, 275 (270 SE2d 850) (1980). The lengthy and detailed affidavit in the case at bar was substantially correct, and, thus, we do not find the scrivener’s error to be so material as to destroy the integrity of the affidavit or the validity of the warrant. Tuzman v. State, 145 Ga. App. 761, 765 (244 SE2d 882), cert. den., 439 U. S. 929 (1978); see, e.g., Mosier v. State, 160 Ga. App. 415 (1) (287 SE2d 357) (1981); Cuevas v. State, 151 Ga. App. 605 (1D) (260 SE2d 737) (1979), cert. den., 445 U. S. 943 (1980). Cf. State v. Hatch, 160 Ga. App. 384 (287 SE2d 98) (1981).

(b) Likewise, “[t]he alleged ‘irregularities’ as to time of issuance of the warrant. . . fall within the category of a ‘technical irregularity not affecting the substantial rights of the accused.’ [Cits.]” Birge v. State, 143 Ga. App. 632 (1a) (239 SE2d 395) (1977); OCGA § 17-5-31. The undisputed record testimony “shows that the officers had the warrant and served it when they arrived to make the search.” Merritt v. State, 121 Ga. App. 832, 833 (175 SE2d 890) (1970).

(c) Finally, defendant alleges that the evidence given the magistrate was “false and deceptive” and prevented the magistrate “from being able to judge whether probable cause existed.” The record conclusively shows that GBI Agent Fischette erroneously stated in the affidavit for the search warrant that he personally received information that defendant was possessing illegal drugs at his residence from a confidential informant Fischette knew to be reliable when, in fact, the information concerning the contraband and the reliability of the informant came from a deputy sheriff of a neighboring county. In explaining his actions in this regard, Agent Fischette testified: “I understand that if the source tells another officer and he [the officer] tells me, it’s the same as [if] the source tells me.”

We join with the trial court in denouncing most strongly Agent Fischette’s deliberately misleading the magistrate in this case. However, setting aside the affidavit’s false material (i.e., Agent Fischette’s purportedly firsthand knowledge of the information concerning the contraband and of the reliability of the informant), we find its remaining content more than sufficient to establish probable cause. See generally Nutter v. State, 162 Ga. App. 349 (291 SE2d 423) (1982), citing Franks v. Delaware, 438 U. S. 154 (98 SC 2674, 57 LE2d 667) (1978). “The fact that the affidavit for issuance of the warrant was based upon information received by the affiant from another police officer, who in turn received the information from [the informant], does not preclude a finding of probable cause if the reliability of such [informant] is established. McNeal v. State, 133 Ga. App. 225 (2) (211 SE2d 173) [(1974)].” Reece v. State, 152 Ga. App. 760, 761-762 (264 SE2d 258) (1979). The informant’s reliability in this case was adequately established. See Pressel v. State, 163 Ga. App. 188 (1b) (292 SE2d 553) (1982).

Moreover, “[t]he thrust of the attack upon the warrant goes to the allegations of the supporting affidavit, which [clearly established probable cause]. The judicial magistrate is authorized to issue the warrant in all instances where the showing is made under oath and contains facts sufficient to show probable cause. [OCGA § 17-5-21.] It is subject to attack on a motion to suppress evidence on the trial of the case for the reason, among others, that it was illegally executed [(OCGA § 17-5-30)], and proof that the facts sworn to in the supporting affidavit were actually false might well be proof of illegal execution. This was not, however, made a ground of the motion to suppress evidence in the present case. The officer whose name was signed to the supporting affidavit admitted . . . that some of the ‘facts’ which he swore the informant had told him had not been furnished him [personally.] ... It appears from all of the evidence that part of the statements made in the affidavit upon which the warrant was issued were true and part were false, thus exposing the affiant to a charge of false swearing. As against the attack that there was no showing of probable cause the question must be determined as of the time the warrant issued, and nothing here suggests that the issuing magistrate had reason to suspect that certain facts included in the affidavit were untrue. As stated above, there was no attack on the warrant on the ground that it was illegally executed. The motion to suppress evidence was properly denied.” Wood v. State, 118 Ga. App. 477 (1) (164 SE2d 233) (1968); see also Thomas v. State, 173 Ga. App. 481, 484 (326 SE2d 840) (1985).

2. As to defendant’s challenge to the sufficiency of the evidence, the record discloses that his residence was searched pursuant to the warrant and marijuana “roaches,” a trace of cocaine, and various items of drug paraphernalia were found on the headboard shelf of the bed in which defendant and a female friend were lying. A bag of marijuana seeds was found in a kitchen cabinet, and a homemade pipe and other items used in the smoking of free base or “crack” cocaine were found in a shoebox in the closet of defendant’s bedroom. After being advised of his rights, defendant was asked if the items seized belonged to his female friend or her sister, the only other persons present at defendant’s residence at the time of the search. He responded negatively, but when asked if the items belonged to him, he responded affirmatively. At trial defendant denied he was referring to the drugs and drug paraphernalia when he made these responses and further denied any knowledge of the drugs seized. He contended that he had left town the day before the search, returning shortly before the search warrant was executed, and that a number of people had attended a party at his residence the previous evening.

Notwithstanding defendant’s denial of possession of the cocaine and marijuana, the weight of the evidence and credibility of witnesses are questions for the jury. Bryant v. State, 174 Ga. App. 468 (1) (330 SE2d 406) (1985). Whether the evidence of equal access was sufficient to rebut the presumption of possession arising from the discovery of drugs in defendant’s bedroom and kitchen was a question properly left to the jury. Gumina v. State, 166 Ga. App. 592 (1) (305 SE2d 37) (1983). The totality of the evidence was sufficient to connect defendant to the possession of the drugs, even though the evidence would have authorized a finding that others had equal access to the drugs. Pamplin v. State, 164 Ga. App. 610 (1) (298 SE2d 622) (1982). Construing the evidence most strongly in favor of the verdict, we find that any rational trier of fact could have found defendant guilty of possession of cocaine and marijuana beyond a reasonable doubt. Accord Burrell v. State, 171 Ga. App. 648 (6) (320 SE2d 810) (1984); Jordan v. State, 161 Ga. App. 613 (1) (288 SE2d 792) (1982).

Decided September 8, 1987

Rehearing denied September 29, 1987

Richard D. Phillips, for appellant.

Dupont K. Cheney, District Attorney, James S. Archer, Assistant District Attorney, for appellee.

3. We find no error in the trial court’s charge which allowed the jury to infer that the owner or occupant of the house is in possession of the entire premises and all the property therein or thereon. A virtually identical charge was approved in Wiley v. State, 178 Ga. App. 136 (4) (342 SE2d 342) (1986).

4. Defendant’s final enumeration, assigning error to the trial court’s denial of his motion for new trial, is premised upon the arguments made in support of the foregoing enumerations of error and, thus, provides no basis for reversal.

Judgment affirmed.

Birdsong, C. J., and Deen, P. J., concur.