text:
    77579.
    PITTMAN v. THE STATE.
    (377 SE2d 695)
   Benham, Judge.

Appellant was convicted of possession of cocaine; possession of marijuana with intent to distribute; obstruction of law enforcementofficers with threat of violence; obstruction of law enforcement officers; possession of a firearm during commission of a felony; carrying a concealed weapon; and carrying a weapon without a license. On appeal, he raises two enumerations of error. Finding no such errors, we affirm the judgment of conviction.

1. After the jury had been struck and sworn, appellant moved for a mistrial, contending that the State’s striking of the two black venirepersons because they knew appellant was a violation of Batson v. Kentucky, 476 U. S. 79 (106 SC 1712, 90 LE2d 69) (1986). Our Supreme Court has held that “any claim under Batson should be raised prior to the time the jurors selected to try the case are sworn.” State v. Sparks, 257 Ga. 97, 98 (355 SE2d 658) (1987). Since appellant’s motion was not timely made, we cannot consider its merits. Compare Adams v. State, 186 Ga. App. 599 (2) (367 SE2d 871) (1988).

2. Appellant contends that because he was the victim of an illegal arrest, search, and seizure, the evidence obtained thereby, packets of marijuana and drug paraphernalia, should have been suppressed. We disagree. The record shows that a confidential informant who previously had given reliable information told police that appellant was dealing cocaine out of his car. The informant also provided additional specific information about appellant’s illegal activities. The officers attempted to corroborate the information by going to the place where a sale was allegedly to take place. There they saw appellant, who fit the description the informant had given them, and who gave the officers three false names when they tried to identify him. The officers also observed three small, brown envelopes protruding from appellant’s shirt pocket, as the informant had said they would be. When the officer said that appellant was, in fact, “Ralph,” appellant ran away and then turned on the officer with a .38 pistol. He was subsequently apprehended and arrested, and his person and vehicle were searched. The search revealed quantities of marijuana, cocaine, and other drug paraphernalia. While the record indicates that it may have been possible for the officers to have obtained a search warrant since the magistrate’s house was located some 500 yards from where the search took place, one of the officers testified that he did not do so because he felt he had to corroborate the informant’s information by observing appellant to see if he was going to do the things the informant had said he would do. “[I]n this case it appeared that the officer delayed taking action in order to verify the information he received . . . Under the circumstances of this case, we find that the failure to obtain a search warrant was not fatal.” Collins v. State, 161 Ga. App. 546, 548 (287 SE2d 708) (1982). A substantial basis for probable cause did exist. Butler v. State, 185 Ga. App. 478 (1) (364 SE2d 612) (1988). Exigent circumstances precluded obtaining a warrant for the search of appellant’s vehicle and person, based on appellant’s attempt to discard the incriminating evidence he had on his person and his attempt to flee the area; and on the officer’s testimony that, once he was apprehended, appellant wanted to release the vehicle to his brother. There being evidence to support the trial court’s determination that no warrant was needed, we affirm the judgment. Id., Division 2.

Decided January 4, 1989.

Jack S. Davidson, Walter B. Harvey, for appellant.

Timothy G. Madison, District Attorney, for appellee.

Judgment affirmed.

McMurray, P. J., and Pope, J., concur.


source: Caselaw Access Project

author: Birdsong, Judge.

license: Public Domain

text:
    77855.
    LOCKE et al. v. VONALT et al.
    (377 SE2d 696)
   Birdsong, Judge.

Appellants, William F. Locke, Scott W. Locke, and National Equipment Sales, Service & Supplies, Inc., bring this appeal from the judgment of the trial court, entered on a jury verdict, in an action for contribution from the appellees, Michael R. Vonalt and Robert E. Vonalt, by appellants. Appellants 'sought recovery of one-half of the amount paid by their insurer in a tort action against appellants and appellees for the wrongful deaths of Deborah Ann Britt and Chris Patsy.

Britt and Patsy died as a result of an automobile collision which occurred on the evening of June 22, 1983, involving a car driven by Scott Locke which collided with a car driven by Britt. Patsy was a passenger in Locke’s automobile. As Michael Vonalt and Bobby Keen started to leave a minature golf course in Vonalt’s red Chevrolet Camaro, Scott Locke and Chris Patsy drove over to them in Locke’s new 280 Datsun ZX. Locke removed the T-tops from his Datsun, and Vonalt and Keene sat in the car for a few minutes before leaving, although Vonalt apparently had a 9:30 p.m. home curfew. Both cars left at approximately the same time and proceeded north on Johnson Ferry Road. At a red light, Vonalt was in the right hand lane and Locke pulled up alongside and Patsy, a close friend of Vonalt, spoke to him. Vonalt said that Patsy asked him if he wanted to do something the coming weekend and he told Patsy to give him a call. Vonalt denies that racing was mentioned. Vonalt said that he knew that Johnson Ferry merged from four lanes to two lanes just ahead and he accelerated quickly to get into the left lane. He admitted he exceeded the speed limit and drove at approximately 55 to 60 miles per hour, and crossed over the double line dividing the north and southbound lanes to get in front of the cars in front of him. He said he glanced in his rearview mirror at Locke, but “I didn’t really care what he was doing. I was just going home. ... I caught him in the rearview mirror. . . . And, by that point I couldn’t see what he was doing anymore. It was a blind curve. ... I didn’t see Scott after I rounded that corner. I don’t know if he stayed in traffic or kept [going]. I don’t know what he was doing.”

Testimony of the other witnesses is in conflict. Kenneth Shook was driving the lead car going north when Vonalt and Locke passed him. He saw Vonalt’s Camaro pass him on the left by crossing over the double line and the Camaro was about four lengths ahead of the Datsun. The Camaro stayed on the left (in the southbound lane) for several car lengths after he passed Shook. He estimated the time lapse between the Camaro and the Datsun as “[t]en seconds or less . . .” and that when the Camaro passed him they both were “[f]ifty or a hundred yards” before Johnson Ferry narrowed from four lanes to two lanes. Shook saw only one other car at that time, the one being driven by Joy Rhodes immediately behind him.

Ms. Rhodes was the second car in this group of cars when she saw headlights in her rearview mirror and heard the sound of the red Camaro passing her at a speed she estimated at “seventy to eighty-five miles per hour.” At that spot, where the cars passed her, she said there was only one northbound and one southbound lane. “Shortly after I noticed that the Camaro had just passed me, I caught another light in my sideview mirror.” She saw the Datsun move out of the northbound lane to pass, “[h]e hesitated. He — he would move out into the left lane, move back into the right lane, and his final entrance in the left lane he stayed there. ... He didn’t pass a line of cars and then get in and then start over. He passed all the cars at — at one passing.” She was asked: “. . . [w]hen the Camaro was even with you, the Datsun was five to six cars behind, wasn’t he? A. Yes, sir.” To emphasize the point, counsel asked: “at the time the Camaro pulled back into the right lane, ahead of Mr. Shook, then the Datsun was four to five car lengths behind you? A. Four.” At a later point she testified: “About the point he [the Camaro] went into the right lane, the 280 Z was even with my car.”

Etheridge Lee Smith was proceeding southbound on Johnson Ferry just prior to this collision. He saw four cars in the northbound lane and two other cars “came up quickly behind them, a red Camaro and a silver-blue Datsun 280 Z type car. As they approached the cars, they pulled into my lane and began passing the four cars.” The Datsun was “[r]ight behind” the Camaro. “They were about a car length apart . . . they both pulled out into the — into my lane of traffic, into the southbound lane together, and then they passed the — the four cars.” Smith drove his truck off the road to get out of the way. The Camaro “had enough room to get back over into his lane with no trouble. ... I was more concerned that the car behind him was gonna hit me . . . the red Camaro came by me, pulled back in his lane and proceeded on up the road. The Datsun right behind him maneuvered fairly hard to get back into his lane. He was beside me at that point. And, as he went by he continued to go just a little bit off the road. And, at that time ... his right wheels went off the road . . . just the right side of the car went off the road. And, he pulled it back on pretty hard and he went across the center lane [sic], out of my sight. ... I heard tires squeeling [sic], crunching sounds; sounds of an impact. ...” Locke’s car collided with the southbound car of Deborah Ann Britt and she was killed. Locke’s passenger, Patsy, was ejected through the roof of the Datsun where the T-bars had been removed, and he was killed. The suits for their wrongful deaths were settled out of court by Locke’s insurer and this action is for contribution from Vonalt.

Locke did not testify at this trial. He claims amnesia for the entire period surrounding the collision and his claim is supported by his psychologist that he is amnestic for this event. Vonalt did not stop at the scene of the collision but proceeded on home after taking Keene to his house. Ms. Rhodes confirmed in her deposition testimony that at the time of the collision, the Camaro “had already cleared the hill. Question: Long gone away? Answer: Uh-huh. I really don’t think he knew what was going on. ... I really don’t think he knew possibly that there had been an accident, until later on down the road when he didn’t see his buddy in his rearview mirror.” The jury returned a verdict for Vonalt and the Lockes bring this appeal. Held:

1. Appellants contend the trial court erred in refusing to grant a new trial on the basis that the jury verdict was contrary to the law, the evidence, the principles of justice and equity, and against the weight of the evidence. Of course, an appellate court does not weigh the evidence, but determines sufficiency. Barnebee v. Shasta Beverages, 184 Ga. App. 435, 436 (361 SE2d 704). The evidence was in conflict, and this presented an issue for the jury. On appeal an appellate court is bound to construe the evidence in support of the verdict and judgment, and if there is some evidence to support the verdict we will uphold the judgment. Rossville Apts. Co. v. Britton, 178 Ga. App. 194, 196 (342 SE2d 504). Evidence was presented at trial which would have authorized the jury to find that Vonalt was not racing with Locke, and that he was unaware of the collision between Locke and Britt. See generally Parr v. Pinson, 182 Ga. App. 707 (2) (356 SE2d 740). Hence, as there was some evidence which would have authorized the verdict, we find no merit to this enumeration.

2. Error is enumerated in the trial court’s denial of appellant’s motion in limine to exclude certain evidence. “The trial court has an absolute right to refuse to decide the admissibility of evidence, allegedly violative of some ordinary rule of evidence, prior to trial.” State v. Johnston, 249 Ga. 413, 415 (291 SE2d 543); accord Morris v. Southern Bell Tel. &c. Co., 180 Ga. App. 145 (1) (348 SE2d 573). The judge did not err in reserving ruling on the evidence until it was proffered during the trial.

3. The appellants called Officer James E. Stephens to testify as to his investigation of this traffic incident. On cross-examination, Vonalt’s counsel asked him, “on all the information that [he] obtained, it was determined that the driver of the 280 ZX was reckless . . . causing the death of a passenger — his passenger and the death of the driver of the [Britt car]. Is that your conclusion? . . . A. Yes, sir. . . . Q. All right. In the cause though of the death of these two people, is there any mention as to the red Camaro — A. No, there isn’t. . . . Q. Now, Officer, your job — part of your job is to enforce the criminal laws. A. That’s correct. . . . Q. And, a racing contest is illegal under the laws of this State, is it not? A. That’s correct. Q. And, you are hired to prosecute people who violate laws, especially when two people die as a result of that? A. That’s correct. Q. All right. Did you give any tickets in this case to Mr. Vonalt?” Objection was made and sustained. The witness did not answer and the jury was instructed to disregard. Counsel’s motion for mistrial was denied.

“The granting or refusing of a motion for mistrial is necessarily a matter largely within the discretion of the trial judge, and unless it is apparent that a mistrial is essential to the preservation of the right to a fair trial, the exercise of the judge’s discretion will not be interfered with.” Salmon v. Salmon, 223 Ga. 129 (1) (153 SE2d 719). “An instruction to the jury to disregard evidence is tantamount to an exclusion.” Bowman v. Bowman, 230 Ga. 395, 396 (197 SE2d 372). Here the question was never answered and the jury was fully instructed to disregard. The curative instructions were sufficient to purge any error which might have occurred. See Compher v. Ga. Waste Systems, 155 Ga. App. 819 (2) (273 SE2d 200). We find no abuse of discretion.

4. We find no prejudicial error in the refusal of the trial court to give appellants’ requested instructions 17, 18 and 21. The court directed verdicts as to the acts of Locke and Vonalt constituting negligence, and further directed a verdict that Locke’s negligence was a causal factor in the deaths of Britt and Patsy. She reserved for trial the issue of whether “any acts of Michael Vonalt were causal factors” in the deaths of Britt and Patsy. The requested charges dealt with whether Vonalt’s actions were causal factors. The issues covered in the three requested charges were covered fully by charges similar to those rejected. Ponder v. Ponder, 251 Ga. 323 (3) (304 SE2d 61); Green v. Gaydon, 174 Ga. App. 796, 798 (331 SE2d 106); see also Davis v. Cincinnati Ins. Co., 160 Ga. App. 813, 815 (288 SE2d 233).

Requested charge 21 was: “to drive two cars in tandem at excessive speeds and in a reckless manner is as much a tacit ‘unlawful. . . enterprise’ to violate the traffic laws of this State as an agreement to engage in ‘racing.’ ” Bellamy v. Edwards, 181 Ga. App. 887, 888 (354 SE2d 434). The charge requested omitted two words crucial to the rule. The full charge is: “A ‘common enterprise’ to drive two cars in tandem at excessive speeds [etc.]. . .” (Emphasis supplied.) Id. at 888. Hence, the requested charge was incomplete and not a full exposition of the legal principle involved. See Sullivan v. Henry, 160 Ga. App. 791, 800 (287 SE2d 652). “ ‘In order for a refusal to charge to be error, the requests must be entirely correct and accurate, and adjusted to the pleadings, law, and evidence, and not otherwise covered in the general charge.’ ” Glenridge Unit &c. Assn. v. Felton, 183 Ga. App. 858, 861 (360 SE2d 418). Here, the subject matter of these requested charges was covered in the general instructions and requested charge 21 was not completely accurate.

5. The giving of appellees’ requested charge 2 is enumerated as error. In the pre-charge conference, appellants’ counsel stated he had no objection to the giving of appellees’ requested charge number 2. “ ‘[Counsel] cannot complain of a judgment, order, or ruling that his own procedure or conduct procured or aided in causing.’ ” Dodd v. Dodd, 224 Ga. 746, 747 (164 SE2d 726). Acquiescence in and agreement to the giving of the charge must be construed as waiver. Little v. Little, 236 Ga. 102 (2) (222 SE2d 384). Induced error is an inadequate and inappropriate basis for a claim of prejudice. Sullens v. State, 239 Ga. 766, 767 (238 SE2d 864).

6. The trial court charged the jury that a “quotient verdict” is an improper manner and method of arriving at a verdict. She defined a “quotient verdict” as one by which the jurors agree in advance to be bound by the result of a vote taken in which each juror places a figure representing the amount of damages on a piece of paper, and the amounts on all 12 pieces of paper are totaled and divided by 12 and that figure will be the verdict. Appellees’ requested charge number 8 addressed the fact that this was an improper method of arriving at a verdict. Appellants contend this was error. We do not agree. The Supreme Court condemned this type verdict in City of Columbus v. Ogletree, 102 Ga. 293, 298 (29 SE 749). Our court followed. Imperial Investment Co. v. Modernization Constr. Co., 96 Ga. App. 385, 386 (100 SE2d 107). In J. M. Beeson Co. v. Knowles, 149 Ga. App. 732 (3) (256 SE2d 44), this court found no harmful error in the giving of a “quotient verdict” charge. Lack of prejudice is apparent, for the jury verdict was for the appellee and the jury was never required to reach an amount of damages.

’ 7. Appellant complains of a portion of an overall charge on “proximate cause” in which the court used the term, “dominant cause.” At issue was whether the acts of Vonalt on the evening in question which immediately preceded the incident which resulted in the deaths of Britt and Patsy was a causal factor. To state a cause of action grounded in negligence, there must be a causal connection between the defendant’s conduct and the plaintiff’s injury. Thus, before an alleged act of negligence is actionable, it must be proven that such negligence was the proximate cause of the plaintiff’s injuries. Whitt v. Walker County, 176 Ga. App. 643, 645 (337 SE2d 425). The court properly and correctly charged the jury that “proximate cause is that which in the natural and continuous sequence, unbroken by other causes, produces an event, and without which the event would not have occurred. . . . Proximate cause is that which is nearest in the order of responsible causes as distinguished from remote, that which stands last in causation, not necessarily in time or place, but in causal relation. ... It is sometimes called the dominant cause.” The last sentence is the cause for objection.

Cases defining “proximate cause” are legion. Their diversity and flexibility áre the subject of continuous but inconclusive discussion. See Prosser, Law of Torts (4th ed.), Causation in Fact; 65 CJS 1131, Neg., § 103; 57 AmJur2d 483, Neg., § 132. “ ‘No inflexible rule of law can be laid down for determining what would be the proximate cause of an injury. The question must be solved by the facts of each particular case. It may be stated generally that the negligence upon which a recovery can be predicated must be the chief preponderating and proximate cause of the injury.’ ” Griner v. Groover, 97 Ga. App. 753, 756 (104 SE2d 504). “ ‘The proximate cause is the efficient cause, the one that necessarily sets the other causes in operation. The causes that are merely incidental or instruments of a superior or controlling agency are not the proximate causes and the responsible ones. . . .’” Standard Oil Co. v. Harris, 120 Ga. App. 768, 771 (172 SE2d 344). “ ‘The proximate cause of an injury is that cause which immediately precedes and directly produces the injury, without which the injury would not have happened. . . . The proximate cause is the dominant cause, not the one which is incidental to that cause. . . . The proximate cause is the efficient cause, the one that necessarily sets the other causes in operation.’ ” (Emphasis supplied.) McMahen v. Nashville &c. R. Co., 68 Ga. App. 397, 402 (23 SE2d 81); accord Brown v. Ga. Power Co., 181 Ga. App. 500, 501 (352 SE2d 818); Eberhart v. Seaboard &c. R. Co., 34 Ga. App. 49, 54 (129 SE 2).

Although we do not approve of the use of the term “dominant cause” in defining “proximate cause,” in the context of the facts of this case we find no prejudicial error in view of the full and correct charge on proximate cause and the use of only a casual reference that sometimes proximate cause is called the dominant cause. Brown, Eberhart and McMahen have called “proximate cause” the “dominant cause,” so the trial court’s statement is correct. In other cases we have referred to “proximate cause” as the “preponderating” cause. Griner, supra. Accordingly, we find no reversible error in the charge as a whole.

Decided January 4, 1989.

Long, Weinberg, Ansley & Wheeler, J. Kenneth Moorman, Alan L. Newman, for appellants.

Downey, Cleveland, Parker & Williams, Lynn A. Downey, for appellees.

8. We find no prejudice to appellant from the trial court’s informing the jury that she has directed a verdict as to three issues: (1) that Michael Vonalt was negligent, (2) that Scott Locke was negligent, and (3) that Locke’s negligence “was a causal factor” in the deaths of Britt and Patsy. She further advised them: “Now, whether or not any acts of Michael Vonalt were causal factors in the deaths of [Britt and Patsy] is a question for you, the jury, to decide, and the Court has not directed a verdict in that area.” We discern no prejudice to appellant by the announcement that she has not directed a verdict against Vonalt as to causation, as this was the issue they were to try.

9. Appellants’ last enumerated error was not argued in the brief and is considered abandoned.

Judgment affirmed.

Banke, P. J., and Beasley, J., concur.


author: McMurray, Presiding Judge.

text:
    A89A0308.
    MacLELLAN v. MUNFORD.
    (377 SE2d 702)
   McMurray, Presiding Judge.

This is an appeal from orders entered in a guardianship proceeding which was initiated in the Probate Court of Fulton County, prior to July 1, 1986. Consequently, jurisdiction of this appeal lies in the Superior Court of Fulton County. Porter v. Frazier, 257 Ga. 614 (361 SE2d 825).

“The 1983 Constitution of the State of Georgia, Article VI, Section I, Paragraph VIII provides, ‘Any court shall transfer to the appropriate court in the state any civil case in which it determines that jurisdiction or venue lies elsewhere.’ ” Bosma v. Gunter, 258 Ga. 664, 665 (373 SE2d 368). Accordingly, this appeal is transferred to the Superior Court of Fulton County.

Appeal transferred to the Superior Court of Fulton County. Carley, C. J., and Beasley, J., concur.

Decided January 4, 1989.

Rogers & Hardin, C. B. Rogers, Joseph C. Miller, James W. Beverage, for appellant.

Kilpatrick & Cody, A. Kimbrough Davis, Moreton Rolleston, Jr., G. William Austin, Louis Levenson & Associates, Louis Levenson, for appellee.

       The appellant stated in her notice of appeal and brief that she also filed a notice of appeal from the orders in the case sub judice in the Superior Court of Fulton County. However, this is not supported by the record.


author: Beasley, Judge.

text:
    77186.
    BURGESS v. THE STATE.
    (377 SE2d 543)
   Beasley, Judge.

Following the denial of his motion for new trial, Burgess appeals his conviction and sentence for child molestation, OCGA § 16-6-4 (a). Burgess was indicted for statutory rape, OCGA § 16-6-3. He does not appeal his conviction and sentence for escape, OCGA § 16-10-52, despite his challenge to the fairness of the trial.

The evidence viewed so as to uphold the verdict, Thomas v. State, 175 Ga. App. 873, 874 (1) (334 SE2d 903) (1985), showed the following: Burgess took his girl friend’s three young children to visit a neighbor’s farm. He instructed the six-year-old and three-year-old to remain at the chicken house and took the nine-year-old girl into the woods. He told the girl to pull her clothes down. He pulled her underwear down around her ankles. Burgess took off some of his clothes and laid down on top of her. He stuck his penis in the girl’s vagina and began moving up and down. Burgess stopped when he saw the farm’s owner, who had come to investigate when he saw the two youngest children standing by themselves with Burgess and the older girl not in sight. Burgess instructed the girl to run back into the woods, which she did. She pulled her clothes back on.

The farm’s owner testified that he saw Burgess and the girl lying in a low place in the woods and that Burgess was on the little girl, “hunching up and down,” “sexing her.” Although the examining physician saw no evidence of injury to the child more than a day after the incident, he agreed that he could not be medically certain that the victim did not have sexual intercourse, and that if the grown man had not actually penetrated the vagina but had merely rubbed his penis up and down between the girl’s legs, there would be no visible signs.

1. Appellant contends the State failed to prove his guilt beyond a reasonable doubt. The evidence was sufficient to enable any rational trier of fact to find Burgess guilty of child molestation beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. Appellant contends that the trial court erred in charging the jury that child molestation was “as a matter of law” a lesser included offense of statutory rape. He argues that he was deprived of due process because he was indicted only for statutory rape, in narrow terms, and there were no allegations relating to the more general separate offense of child molestation. Child molestation, he contends, has heretofore not been determined to constitute an included offense of statutory rape as a matter of law.

OCGA § 16-1-6 provides that a crime is a lesser included offense when, “[i]t is established by proof of the same or less than all the facts or a less culpable mental state than is required to establish the commission of the crime charged; . . .” or “[i]t differs from the crime charged only in the respect that a less serious injury or risk of injury to the same person, property, or public interest or a lesser kind of culpability suffices to establish its commission.”

The statute provides for a “more lenient ‘alternative’ test, rather than the narrower ‘conjunctive’ standard prevailing in federal courts,” Ramsey v. State, 145 Ga. App. 60, 64 (10) (243 SE2d 555) (1978), rev’d on other grounds, 241 Ga. 426 (246 SE2d 190) (1978), applying Pryor v. State, 238 Ga. 698 (234 SE2d 918) (1977). That is, a lesser offense may be included in the greater offense as a matter of fact or as a matter of law.

The indictment charged that Burgess “did engage in sexual intercourse with [the victim], a female under the age of 14 years, not his spouse.” The narrower wording of the act, which because it is more physically invasive is a greater offense, fits within the definition of child molestation, which occurs when one “does any immoral or indecent act to or in the presence of or with any child under the age of 14 years with the intent to arouse or satisfy the sexual desires of either the child or the person.” OCGA § 16-6-4. The latter is lesser in degree in relation to statutory rape. Glisson v. State, 181 Ga. App. 585 (1) (353 SE2d 202) (1987). It is lesser in that it is an act approaching but not reaching sexual penetration.

Contrary to appellant’s contention, the trial court did not charge the jury that child molestation was a lesser included offense of statutory rape “as a matter of law” but that after considering the testimony and evidence presented, if the jury did not find defendant guilty of statutory rape, it could in this case then consider the lesser included offense of child molestation. The evidence shows that child molestation was a lesser included offense of statutory rape as a matter of fact. See Coker v. State, 164 Ga. App. 493, 495 (3) (297 SE2d 68) (1982).

The trial court did not err in instructing the jury that it could return a verdict on child molestation. Lamar v. State, 243 Ga. 401, 402 (3) (254 SE2d 353) (1979); Parker v. State, 256 Ga. 543, 548 (2) (350 SE2d 570) (1986).

3. Appellant contends that the trial court abused its discretion in allowing the victim to testify over his objection to her competency.

“A child is competent to testify if the court is satisfied that the child knows and appreciates the fact that ‘as a witness he assumes a solemn and binding obligation to tell the truth relative to the case and concerning such matters as he may be interrogated on, and that if he violates the obligation, he is subject to be punished by the court.’ [Cits.]” Grier v. State, 257 Ga. 539 (1) (361 SE2d 379) (1987), applying OCGA §§ 24-9-5 and 24-9-7 (a).

The child, who was nine or ten and in the third grade when she testified, stated: she. knew what the truth was; it was better to tell the truth than to lie; she was going to tell the truth; she might get in trouble if she lied. She also testified that she understood what it would be if she was asked to raise her hand and swear to tell the truth, that it would be an oath, and that if she violated the oath and told lies there was a penalty and she might get in trouble.

The trial court did not abuse its discretion in finding the child victim competent to testify.

4. Appellant contends that the trial court erred in overruling his motion under Batson v. Kentucky, 476 U. S. 79 (106 SC 1712, 90 LE2d 69) (1986), challenging the State’s use of its peremptory strikes.

Defendant, who is black, made his challenge to the jury chosen following the dismissal of the venire panel but prior to the jury being sworn. See State v. Sparks, 257 Ga. 97, 98 (355 SE2d 658) (1987). The State’s initial response to the motion was that it was untimely because the panel had been dismissed and also that defendant had failed to make the required prima facie showing.

The State then related numerical data about the strikes exercised on the panel of forty-two from which the jury of eleven whites and one black (8.3%) were selected. Of the forty-two veniremen, six (14.3%) were black. Of the State’s ten strikes, it used six on white persons (60%) and four on blacks (40%). By its strikes, the State excluded 66.6% of the black veniremen. Of the defense’s twenty strikes, nineteen (95%) were used to strike whites and one (5%) to strike blacks.

As to the reason for the strikes, the State concluded that it had “a good reason for each and every one, ... a racially neutral reason,” but that it would not have to go further because of the asserted defects in defendant’s motion and showing.

“To establish a prima facie case of purposeful discrimination in jury selection under Batson, a defendant must show ‘that he is a member of a cognizable racial group, [Cit.] . . . that the prosecutor has exercised peremptory challenges to remove from the venire members of the defendant’s race, . . . that these facts and any other relevant circumstances raise an inference that the prosecutor used [the] practice [of peremptory strikes] to exclude the veniremen from the petit jury on account of their race . . . Once the defendant makes a prima facie showing, the burden shifts to the State to come forward with a neutral explanation for challenging black jurors . . . (T)he prosecutor may not rebut the defendant’s case . . . merely by denying that he had a discriminatory motive . . . The prosecutor therefore must articulate a neutral explanation related to the particular case to be tried. The trial court then will have the duty to determine if the defendant has established purposeful discrimination.’ [Cit.]” Barton v. State, 184 Ga. App. 258, 259 (2) (361 SE2d 250) (1987).

Decided January 5, 1989.

David F. Dickinson, for appellant.

John M. Ott, District Attorney, J. Ellis Millsaps, Assistant District Attorney, for appellee.

The statistics, as “other relevant circumstances,” raise an inference of racial motive. Aldridge v. State, 258 Ga. 75, 79 (4) (365 SE2d 111) (1988). With the inference completely unrebutted, we would have to conclude that the State’s use of peremptory chhllenges resulted in racial discrimination, because although the panel was 14.3% black, the jury was only 8.3% black. Compare Aldridge, supra. Thus a prima facie case was made out.

“Since the trial court did not require the prosecution to explain its use of its peremptory challenges, we remand the case to allow the State’s attorney to do so, after which the trial court shall make findings under Batson. See Gamble v. State, 257 Ga. 325 (357 SE2d 792) (1987); Wise v. State, 179 Ga. App. 115 (346 SE2d 393) (1986). If the trial court determines that the State’s challenges violated Batson, a new trial with a properly composed jury shall be ordered; if it determines that there was no Batson violation, the conviction shall remain in effect. Either party may file a notice of appeal from the trial court’s ruling made after remand.” Barton v. State, supra at 260 (2).

Case remanded with direction.

Banke, P. J., and Birdsong, J., concur.


author: Sognier, Judge.

text:
    77345.
    DOE v. THE STATE.
    (377 SE2d 546)
   Sognier, Judge.

Harvey Doe was convicted on all counts of a six-count indictment, and he appeals the convictions for possession of cocaine with intent to distribute and possession of marijuana.

Appellant’s sole enumeration of error is on the general grounds. Specifically, he contends that the State presented only circumstantial evidence against him which he sufficiently rebutted, and that evidence of equal access to the contraband by others overcame the presumption that he was in possession of the drugs.

The record reveals that on the night of August 27, 1987, Officer Freddie Stewart of the Glennville Police Department saw appellant, who was driving a pickup truck with a Florida tag, cross the center-line several times. Officer Stewart stopped appellant, and upon observing that appellant was unsteady on his feet and smelled of alcohol, arrested him for driving under the influence. The officer testified he then looked through the truck window and saw in plain view a package of rolling papers, a partially smoked marijuana cigarette, and a manila envelope stamped with the words “Real Deal.” A subsequent search of the truck yielded a plastic bag containing cocaine, another plastic bag filled with eighteen chunks of rock cocaine, and several other manila envelopes also marked “Real Deal” containing marijuana. Officer Stewart testified that upon searching appellant, he found $1,565.14 in cash, mostly in twenty dollar bills. Patrick Long, the senior forensic chemist from the state crime lab, testified that he tested the evidence obtained in the search and found that it consisted of 2.8 grams of marijuana, 11 grams of powdered cocaine, and 9 grams of rock cocaine, which he estimated carried a total street value of between $2,030 and $2,930. Appellant testified that he had borrowed the truck from his estranged wife earlier in the day to drive from Fort Lauderdale to attend a family reunion in Georgia, and that he was carrying a large amount of cash in anticipation of a two-week visit. Appellant also testified that his cousin and the cousin’s son rode with him during most of the trip.

While a finding of constructive possession of drugs “must be based upon some connection between the defendant and the contraband other than spatial proximity [cit.],” Mitchell v. State, 150 Ga. App. 44, 46 (2) (256 SE2d 652) (1979), this connection may be established by proof of occupancy and control of the premises or vehicle by the defendant with no equal access by others. Id. at 46-47 (2). Under such circumstances, in the absence of contrary evidence a presumption arises that the driver is in control and possession of the contraband. Fears v. State, 169 Ga. App. 172, 173 (312 SE2d 174) (1983).

In the case at bar, although appellant testified he was not the owner of the truck, the evidence showed that he had been the sole driver for at least twelve consecutive hours, and the contraband was found in the open ashtray, on the seat, and under the seat within reach of the driver, and thus appellant was presumed to be in possession of the drugs. See Walker v. State, 140 Ga. App. 418, 419 (1) (231 SE2d 386) (1976). Although proof of equal access to the drugs by persons other than appellant may be sufficient to overcome this presumption, Castillo v. State, 166 Ga. App. 817, 821-822 (2) (305 SE2d 629) (1983), whether or not the evidence regarding the presence of passengers and ownership of the truck by appellant’s wife was sufficient to overcome the presumption arising from the discovery of the drugs in the truck was a question for the jurors, and they decided it adversely to appellant. See Moore v. State, 155 Ga. App. 149, 150-151 (1) (270 SE2d 339) (1980). We find the totality of the evidence was sufficient to connect appellant to the possession of the drugs. See Lane v. State, 177 Ga. App. 553, 554 (1) (340 SE2d 228) (1986).

Decided January 5, 1989.

Joel E. Williams, Jr., for appellant.

Dupont K. Cheney, District Attorney, J. Stephen Archer, David C. Walker, Assistant District Attorneys, for appellee.

Similarly, although “mere possession of contraband without more will not serve as the basis for a conviction for possessing contraband for purposes of sale, [cit.],” Wright v. State, 154 Ga. App. 400, 401-402 (1) (268 SE2d 378) (1980), the quantity of cocaine found, as well as the presence of other drug paraphernalia, marked envelopes, and a large sum of cash, give rise to a reasonable inference that appellant possessed the cocaine with the intention of distributing it. Holbrook v. State, 177 Ga. App. 318, 321 (339 SE2d 346) (1985). “To warrant a conviction on circumstantial evidence, the proved facts shall not only be consistent with the hypothesis of guilt, but shall exclude every other reasonable hypothesis save that of the guilt of the accused.” OCGA § 24-4-6. Whether this burden has been met is a question for the jury, and its determination will not be disturbed unless the verdict is unsupportable as a matter of law. Lewis v. State, 186 Ga. App. 349, 350 (1) (a) (367 SE2d 123) (1988).

We find the evidence was sufficient to authorize a rational trier of fact to find appellant guilty beyond a reasonable doubt of the charged violations of OCGA § 16-13-30. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); see Reed v. State, 186 Ga. App. 539, 540 (367 SE2d 809) (1988).

Judgment affirmed.

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


author: Banke, Presiding Judge.

text:
    77793.
    MORGAN v. THE STATE.
    (377 SE2d 707)
   Banke, Presiding Judge.

The appellant, James Morgan, was convicted of three counts of aggravated sodomy and two counts of child molestation, all involving his eight-year-old stepdaughter. On appeal he complains of certain evidentiary rulings made by the trial court. Held:

Decided January 5, 1989.

Harl C. Duffey III, for appellant.

Stephen F. Lanier, District Attorney, Fred R. Simpson, Assistant District Attorney, for appellee.

1. The appellant contends the trial court erred in admitting, over his hearsay objection, the following testimony by the examining physician: “[The child] stated that she never told anyone before because she was scared and that she would pray at night that the Lord would make her understand to tell someone. When asked why she told at this time, she said she trusted her teacher this year and that was why she was brave enough to tell her.”

Pursuant to OCGA § 24-3-16, a statement made by a child under the age of 14 to another concerning sexual contact or physical abuse is admissible if the child is available to testify and the court finds sufficient indicia of reliability in the statement. See Godfrey v. State, 258 Ga. 28 (365 SE2d 93) (1988). The testimony in question “falls squarely within OCGA § 24-3-16 and the trial court did not err by allowing the statements.” Reynolds v. State, 257 Ga. 725 (363 SE2d 249) (1988).

2. The physician testified that her examination revealed one large and two small tears in the child’s vagina which were consistent with sexual molestation. The small tears were located through the use of toluidine blue dye. The appellant contends the trial court erred in denying his motion to exclude any reference to these tears because the use of the dye for this purpose was not shown to be reliable.

The physician was qualified as an expert and testified that the dye was used to highlight tears in tissue not visible to the naked eye. She stated that use of this technique was an accepted procedure within the medical profession and that she routinely used the procedure in examining for indications of sexual abuse. Based on this foundation, the references to the procedure were properly allowed. Accord Godfrey v. State, 258 Ga. 28 (365 SE2d 93) (1988); see generally Harper v. State, 249 Ga. 519 (1) (292 SE2d 389) (1982).

3. Applying the standard of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979), we conclude that the evidence was sufficient to enable a rational trier of fact to find the appellant guilty of each and every count of the indictment beyond a reasonable doubt.

Judgment affirmed.

Birdsong and Beasley, JJ., concur.


text:
    A89A0292.
    BAYNES v. THE STATE.
    (377 SE2d 708)
    Decided January 5, 1989.

      Strauss & Walker, C. Michael Walker, Pamela D. South, for appellant.

      John M. Ott, District Attorney, for appellee.
   Banke, Presiding Judge.

The appellant filed a motion to suppress evidence after he was indicted for carrying a concealed weapon and possession of an article with altered identification mark. The trial court denied the motion by order entered on September 22, 1988, and on that same date certified its ruling for immediate review. On September 29, 1988, the appellant filed with the clerk of the trial court a document entitled “Notice of Appeal.” The notice began as follows: “Please take notice that the defendant . . . hereby appeals to the Court of Appeals of Georgia from the order of the court . . . denying the defendant’s motion to suppress evidence.” However, the document went on to assert various “[g] rounds for granting this application for leave to appeal. . . .’’As directed by the notice, the clerk of the lower court transmitted the record in the case to this court, where it was docketed on October 28, 1988. Held:

OCGA § 5-6-34 (b) specifies that applications for interlocutory appeal “shall b,e filed with the clerk of the Supreme Court or the Court of Appeals. . . .” It further specifies that “the Supreme Court or the Court of Appeals may thereupon, in their respective discretions, permit an appeal to be taken from the order, decision, or judgment if [the] application is made thereto within ten days after [the] certificate [of immediate review] is granted.” Id. (Emphasis supplied.) Because the application in the present case was styled as a notice of appeal and was filed in the trial court, it did not reach this court until well over ten days after the certificate of immediate review was granted. Consequently, if we treat the document as an application for appeal, it must be dismissed as untimely. On the other hand, if we treat it as a notice of appeal, the appeal must be dismissed on the ground that it was not taken from an order or judgment from which a direct appeal was authorized. See OCGA § 5-6-34 (a).

Appeal dismissed.

Sognier and Pope, JJ., concur.


text:
    77248.
    DICKENS et al. v. CALHOUN FIRST NATIONAL BANK et al.
    (377 SE2d 715)
   Beasley, Judge.

Mr. and Mrs. Dickens, plaintiffs, appeal the grant of summary judgment to Calhoun First National Bank and Frank Hutchinson, a bank officer.

Viewing the evidence in favor of plaintiffs, it shows that on September 7, 1984, they obtained a loan of $192,000, from the bank. The loan was to be repaid in eleven installments with the last installment due September 7, 1985.

On June 25, 1985, plaintiffs executed a 90-day promissory note to the bank for $206,755.77 with a maturity date of September 22, 1985. The note was renewed with a new maturity date of December 27, 1985. It was not assumable and was secured by a deed to secure debt on their property.

In late 1984 or early 1985, plaintiffs applied to the bank for another loan which was to be guaranteed by the federal Small Business Administration. Mrs. Dickens and her bookkeeper, who had filled out the application, took it to the bank. Hutchinson,' who had processed and approved the earlier loans, told them this application would have to be filled out by a certified public accountant. He recommended to them the firm which employed his son-in-law.

The loan application was never processed by the bank, which was required to approve it before it would be forwarded to the SBA. Mr. Dickens admitted that insufficient funds checks written on a Florida account were deposited into his account with defendant a month after the application was submitted. This account with defendant was overdrawn by $16,000. As required by law, defendant reported what appeared to be a check kiting scheme to federal authorities. Mr. Dickens eventually came to the bank and picked up the SBA loan application in order to submit it to another bank.

Plaintiffs operated an auction barn on the property and, because of financial reverses, found it necessary to borrow approximately $55,000 in cash from Kraut, a local businessman. These loans were done on a handshake. On Christmas Day 1985, Kraut and Mr. Dickens had a conversation in which Kraut agreed to purchase 54 acres of the property, including the auction barn and rental houses. As consideration, Kraut was to cancel plaintiffs’ debt to him and pay defendant $192,000 on the bank debt.

Kraut gave plaintiffs a check for $4,500 as payment for an old house trailer, the rental furniture in the houses, and some restaurant equipment. Another $5,500 was to be paid later. Kraut had conversations with some of plaintiffs’ employees about their status and bought a set of cattle scales in preparation for running a cattle auction on the property.

Mr. Dickens told Kraut that he owed the bank, but not how much. On December 28, Kraut went to the bank to discuss financing his purchase and Hutchinson told him he could not assume the note and that Mr. Dickens was in financial trouble. The payout of the note due on December 27 had not occurred.

Kraut became angry at the Dickenses, apparently realizing that plaintiffs stood to make $32,000 if he went through with the transaction. He told Mr. Dickens the deal was off and he would just wait out the situation.

On November 11, Mrs. Dickens, to whom Mr. Dickens had transferred his interest by deed that day, gave Kraut a security deed on the property for $38,000. On December 23, a second deed for $22,250 was given. These deeds were not recorded until January 17, 1986.

The bank sent a foreclosure notice letter in April 1986, and foreclosed and bought the property at public sale in May.

Plaintiffs sued both the bank and Hutchinson in 1987, alleging that defendants improperly disclosed confidential information to plaintiffs’ prospective purchaser. The complaint was amended in February 1988, to allege that defendants violated the Equal Credit Opportunity Act by not processing the application and misrepresenting its status to plaintiffs.

Plaintiffs again amended the complaint in April and deleted the Equal Credit Opportunity Act claim. They added a claim that defendant Hutchinson was civilly and criminally liable for violation of 18 USCA § 215, i.e., receiving gifts by a bank officer, by causing plaintiffs to hire his relative to prepare the application. The amendment further alleged that defendants committed fraud by telling plaintiffs the loan was being pursued when it was not and that the disclosure of confidential information to the purchaser was tortious interference with plaintiffs’ contract with him.

Defendants’ Motion for Summary Judgment was filed in February 1988, and the order granting it was signed by the court in April, two days after the second amendment to the complaint, and filed in May.

The grounds upon which defendants moved for summary judgment related only to the two claims contained in the original complaint and the first amendment, which were the only claims pending when the motion was filed. That is all the trial court ruled on and that constitutes the scope of the appeal.

Plaintiffs having withdrawn their claim under the Equal Credit Opportunity Act, there is nothing in this regard for us to consider. Thus, we consider the grant of summary judgment only as to the improper disclosure of confidential information claim. As reflected by the later amendment, the act would amount to a ground for recovery only in the context of the tort of interference with a contract right, there being no independent cause of action as to the disclosure. See Big Bend Agri-Svcs. v. Bank of Meigs, 174 Ga. App. 493, 494 (1) (330 SE2d 422) (1985); Delta Diversified v. C & S Nat. Bank, 171 Ga. App. 625, 635 (9 b) (320 SE2d 767) (1984); Citizens Bank, Vienna v. Bowen, 169 Ga. App. 896, 898 (1) (315 SE2d 437) (1984); Williams v. Coffee County Bank, 168 Ga. App. 149, 150 (2) (308 SE2d 430) (1983); Boatman v. C & S Nat. Bank, 155 Ga. App. 848, 850 (2) (273 SE2d 190) (1980). The original complaint was sufficient to raise this issue.

Decided January 6, 1989.

Lamb & Associates, T. Gordon Lamb, S. Robert Hahn, Jr., for appellants.

Henry C. Tharpe, Jr., Cynthia K. Johnson, for appellees.

The intentional interference by a third party with existing contractual rights and relations constitutes a tort for which an action will lie. Sheppard v. Post, 142 Ga. App. 646 (1) (236 SE2d 680) (1977); Piedmont Cotton Mills v. H. W. Ivey Constr. Co., 109 Ga. App. 876 (1) (137 SE2d 528) (1964); OCGA § 51-9-1.

The contract alleged to have been interfered with was the oral agreement by Kraut to buy the real property of plaintiffs, which was subject to the deeds to secure debt of both the defendant bank and Kraut. The oral agreement by Kraut to purchase the property was not binding on him since it was not in writing and signed by him. OCGA § 13-5-30. “While it is actionable to maliciously and without justifiable cause induce one to break his contract with another to the damage of the latter [Cit.], this presupposes the existence of a valid, enforceable contract; and where, as here, there was no such contract and the plaintiff had no contractual rights to be violated, a cause of action will not lie therefor. [Cit.]” Charles v. Simmons, 215 Ga. 794, 797 (3) (113 SE2d 604) (1960); Integrated Micro Systems v. NEC &c., 174 Ga. App. 197, 199 (1) (329 SE2d 554) (1985); Studdard v. Evans, 108 Ga. App. 819, 822 (2) (135 SE2d 60) (1964).

Summary judgment on this claim was proper.

Judgment affirmed.

Banke, P. J., and Birdsong, J., concur.


author: Benham, Judge.

text:
    77123.
    THE STATE v. BUFFINGTON.
    (377 SE2d 548)
   Benham, Judge.

Appellee was arrested for driving under the influence of alcohol near Gainesville, Georgia, on New Year’s Eve. He was given an intoximeter test, which produced a reading of .27 grams percent. Appellee filed a motion in limine to suppress the test results, contending that he was not given ample opportunity to take an independent blood test in accordance with OCGA § 40-6-392 (a) (3). The trial court granted appellee’s motion, and the State appeals.

The testimony at the suppression hearing showed that after the completion of the State’s intoximeter test, appellee asked for an additional blood alcohol test. When the question of cost came up, the arresting officer had someone at the county jail call the Northeast Georgia Medical Center to find out what the cost of the test would be. One of the jailers reported that it was “somewhere around in the mid-twenties.” The officer asked appellee if he had the money and he said he had “$20-something” so the officer took appellee to the medical center emergency room and told the clerk that appellee wanted an additional blood test at appellee’s expense. Appellee’s funds were then counted and it was discovered that he had $22; the cost of the test was a few dollars more than that, so the officer told appellee that he did not have enough money to take the test. He would not let appellee talk to the clerk personally to negotiate another, method of payment for the blood test, even though appellee had his checkbook with him. Appellee had done business with the hospital before, and he had an aunt who was a hospital employee. He also had relatives who lived within five minutes travel time of the hospital, but the officer would not allow him to contact any of them for financial assistance while he was there. The officer took appellee back to the patrol car and returned him to jail without his having taken the blood test he requested.

The trial court granted appellee’s motion, concluding that under the circumstances appellee was not given an opportunity to have an independent test. We agree. OCGA § 40-6-392 (a) (3) allows one accused of driving under the influence of alcoholic beverages the right to have a chemical analysis of his blood and urine by a qualified person of his own choosing, and there is a corresponding duty on the part of law enforcement officers not to refuse or fail to allow the accused to exercise that right. Puett v. State, 147 Ga. App. 300 (248 SE2d 560) (1978). While it is not the officer’s duty to insure the performance of an independent test, he cannot prevent a defendant from exercising his right to such a test. Grizzle v. State, 153 Ga. App. 364 (2) (265 SE2d 324) (1980). The statute also states that “the justifiable failure or inability to obtain an additional test shall not preclude the admission of evidence relating to the test or tests taken at the direction of a law enforcement officer.” It is incumbent on the trial court to determine whether the failure or inability to obtain the additional test is justified. In making that determination, the trial court must decide if, under the totality of the circumstances, the officer made a reasonable effort to accommodate the accused who seeks an independent test. Factors to be considered include, but are not limited to, the following: (1) availability of or access to funds or resources to pay for the requested test; (2) a protracted delay in the giving of the test if the officer complies with the accused’s requests; (3) availability of police time and other resources; (4) location of requested facilities, e.g., the hospital to which the accused wants to be taken is nearby but in a different jurisdiction; (5) opportunity and ability of accused to make arrangements personally for the testing.-

Decided January 9, 1989.

Lydia S. Jackson, Solicitor, Raymond E. George, Assistant Solicitor, for appellant.

G. Hammond Law III, for appellee.

Viewing the trial court’s decision in light of the foregoing analytical framework, we find that the decision reached was the correct one in this case. The facts showed that appellee needed only a few additional dollars in cash to have funds sufficient to pay for the test; that there was a strong possibility that he could have gotten the money from a nearby relative or made other payment arrangements with the hospital had he been allowed to speak personally with hospital personnel; that the testing would not have been delayed for a long period of time if appellee had been allowed to call his relatives who lived in the vicinity of the hospital and seek their financial assistance; and that there was nothing to show that the officer was pressed for time or had other matters that needed his immediate attention. Looking to the totality of the circumstances, appellee’s request was reasonable and the officer’s response was not. We agree with the trial court’s conclusion that that response had the effect of denying appellant his right under OCGA § 40-6-392 (a) (3) in this case; therefore, we affirm the order granting appellee’s motion in limine to suppress the evidence of the State’s test. See State v. Hughes, 181 Ga. App. 464 (352 SE2d 643) (1987).

Judgment affirmed.

McMurray, P. J., and Pope, J., concur.


text:
    77138.
    GERDES v. DZIEWINSKI.
    (377 SE2d 550)
   Benham, Judge.

This is an appeal from a judgment that dismissed an appeal on the ground that there had been an unreasonable and inexcusable delay in forwarding the record and transcript to this court. OCGA § 5-6-48 (c). Appellant Gerdes, acting pro se, sued appellee Dziewinski for personal injuries she suffered while on the premises of Dziewinski’s business, Lindview Apartments. See Gerdes v. Dziewinski, 182 Ga. App. 764 (357 SE2d 110) (1987). After Gerdes presented her evidence at trial on August 3, 1987, Dziewinski moved for a directed verdict, which the trial court granted. Gerdes timely sought and was given an extension of time in which to file her notice of appeal from the judgment entered against her, and she did so on September 18, 1987. The notice stated that a transcript of the evidence of the trial would be forwarded to the Court of Appeals. On or about September 30, appellant tried to amend her notice of appeal, seeking to limit the items which were to be included in the record. Shortly thereafter, the trial court entered an order finding that the amendment was untimely, since the clerk’s office had already prepared the record in its entirety as appellant had originally requested. On December 16, the trial court appeals clerk swore in an affidavit that the record had been prepared, that the appeal costs had been paid by appellant on October 9, 1987, and that the only reason the record had not been forwarded to the Court of Appeals was that no transcript of proceedings had been presented to the clerk’s office to be included in the record as stated in appellant’s notice of appeal.

After hearing the arguments, considering the briefs, and reviewing all of the material on file in this matter, the trial court concluded that appellant had been informed on multiple occasions, by telephone and by mail, that in order to obtain a transcript of the August 3, 1987, trial proceedings, she must pay the court reporter a takedown fee and a fee for the transcription. As of March 23, 1988, the date of the trial court’s dismissal of the appeal, appellant had paid the court reporter’s takedown fee but had not paid the transcription costs, and so the case had not been transcribed. Over six months had passed since appellant had filed her notice of appeal. Under the authority of OCGA § 5-6-48 (c), the trial court found that there had been an unreasonable delay in filing the transcript, that the delay was caused by appellant, and that it was inexcusable. The trial court granted appellee’s motion and dismissed appellant’s appeal.

Appellant contends that communication problems between her and the court reporter kept her from securing the transcript in a timely manner, and that if there was an unreasonable, inexcusable delay, it “was deliberate on the part of someone in or connected with the trial court.” In her briefs, appellant has included as exhibits copies of her correspondence with various court personnel which are intended to document her assertions, but since these items are not part of the record before us, we cannot consider them and they afford no basis for reversal. Strickland v. American Motorists Ins. Co., 149 Ga. App. 690 (256 SE2d 92) (1979). The record before us does not show that appellant made any effort to obtain an extension of time in which to have the transcript prepared. She should have sought such an extension regardless of the reason for her inability to have the transcript prepared in a timely fashion. See In re G. W. H., 168 Ga. App. 845 (310 SE2d 573) (1983). Since appellant failed to do so, and there is no other evidence of record showing that others were at fault and thereby caused the filing delay, we find no abuse of the trial court’s discretion and affirm the dismissal of appellant’s appeal. Id.; Dampier v. First Bank &c. Co., 153 Ga. App. 756 (266 SE2d 539) (1980).

Decided January 9, 1989.

Phyllis Gerdes, pro se.

Patricia M. Anagnostakis, Wade K. Copeland, for appellee.

Judgment affirmed.

McMurray, P. J., and Pope, J., concur.


text:
    77340, 77341.
    FIRST BAPTIST CHURCH OF MOULTRIE v. BARBER CONTRACTING COMPANY et al.; and vice versa.
    (377 SE2d 717)
   McMurray, Presiding Judge.

The First Baptist Church of Moultrie, Georgia, invited bids for the construction of a music, education and recreation building. The bids were to be opened on May 15, 1986. They were to be accompanied by a bid bond in the amount of 5 percent of the base bid. The bidding instructions provided, in pertinent part: “Negligence on the part of the bidder in preparing the bid confers no right for the withdrawal of the bid after it has been opened.”

Barber Contracting Company (“Barber”) submitted a bid for the project in the amount of $1,860,000. The bid provided, in pertinent part: “For and in consideration of the sum of $1.00, the receipt of which is hereby acknowledged, the undersigned agrees that this proposal may not be revoked or withdrawn after the time set for the opening of bids but shall remain open for acceptance for a period of thirty-five (35) days following such time.” The bid also provided that if it was accepted within 35 days of the opening of bids, Barber would execute a contract for the construction of the project within 10 days of the acceptance of the bid.

A bid bond in the amount of 5 percent of Barber’s bid ($93,000) was issued by The American Insurance Company to cover Barber’s bid. With regard to the bid bond, the bid submitted by Barber provided: “If this proposal is accepted within thirty-five (35) days after the date set for the opening of bids and the undersigned [Barber] fails to execute the contract within ten (10) days after written notice of such acceptance . . . the obligation of the bid bond will remain in full force and effect and the money payable thereon shall be paid into the funds of the Owner as liquidated damages for such failure ...”

The bids were opened by the church on May 15, 1986, as planned. Barber submitted the lowest bid. The second lowest bid, in the amount of $1,975,000 was submitted by H & H Construction and Supply Company, Inc. (“H & H”).

Barber’s president, Albert W. Barber, was present when the bids were opened, and of course, he was informed that Barber was the low bidder. Members of the church building committee informally asked President Barber if changes could be made in the contract to reduce the amount of the bid. He replied that he was sure such changes could be made.

On May 16, 1986, Albert W. Barber informed the architect for the project, William Frank McCall, Jr., that the amount of the bid was in error — the bid should have been $143,120 higher. In Mr. Barber’s words: “[T]he mistake in Barber’s bid was caused by an error in totaling the material costs on page 3 of Barber’s estimate work sheets. The subtotal of the material cost listed on that page is actually $137,990. The total listed on Barber’s summary sheet for the material cost subtotal was $19,214. The net error in addition was $118,776. After adding in mark-ups for sales tax (4 percent), overhead and profit (15 percent), and bond procurement costs (.75 percent), the error was compounded to a total of $143,120 . . .” The architect immediately telephoned Billy G. Fallin, co-chairman of the church building committee, and relayed the information which he received from President Barber.

On May 20, 1986, Barber delivered letters to the architect and the church. In the letter to the architect, Barber enclosed copies of its estimate sheets and requested that it be permitted to withdraw its bid. In the letter to the church, Barber stated that it was withdrawing its bid on account of “an error in adding certain estimated material costs.” In addition, Barber sought the return of the bid bond from the church.

On May 29, 1986, the church forwarded a construction contract, based upon Barber’s bid, to Barber. The contract had been prepared by the architect and executed by the church. The next day, Barber returned the contract to the church without executing it. In so doing, Barber pointed out that its bid had been withdrawn previously.

On July 25, 1986, the church entered into a construction contract for the project with H & H, the second lowest bidder. Through deletions and design changes, the church was able to secure a contract with H & H for $1,919,272.

In the meantime, the church demanded that Barber and The American Insurance Company pay it $93,000 pursuant to the bid bond. The demand was refused.

On May 26, 1987, the church brought suit against Barber and The American Insurance Company seeking to recover the amount of the bid bond. Answering the complaint, defendants denied they were liable to plaintiff.

Thereafter, defendants moved for summary judgment and so did the plaintiff. In support of their summary judgment motions, defendants submitted the affidavit of Albert W. Barber. He averred that in preparing its bid, Barber exercised the level of care ordinarily exercised by contractors submitting sealed bids. In support of its summary judgment motion, the church submitted the affidavit of a building contractor who averred that he would never submit a bid of any magnitude without obtaining assistance in verification and computation.

The trial court denied the summary judgment motions, certified its rulings for immediate review and we granted these interlocutory appeals. Held:

The question for decision is whether Barber was entitled to rescind its bid upon discovering that it was based upon a miscalculation or whether Barber should forfeit its bond because it refused to execute the contract following the acceptance of its bid by the church. We hold that Barber was entitled to rescind its bid.

That equity will rescind a contract upon a unilateral mistake is a generally accepted principle. See Corbin on Contracts, § 609 (1960). As it is said: “Where a mistake of one party at the time a contract was made as to a basic assumption on which he made the contract has a material effect on the agreed exchange of performances that is adverse to him, the contract is voidable by him if he does not bear the risk of the mistake . . . and (a) the effect of the mistake is such that enforcement of the contract would be unconscionable, or (b) the other party had reason to know of the mistake or his fault caused the mistake.” Restatement (2d) of Contracts, § 153 (1979).

The following illustration demonstrates the rule: “In response to B’s invitation for bids on the construction of a building according to stated specifications, A submits an offer to do the work for $150,000. A believes that this is the total of a column of figures, but he has made an error by inadvertently omitting a $50,000 item, and in fact the total is $200,000. B, having no reason to know of A’s mistake, accepts A’s bid. If A performs for $150,000, he will sustain a loss of $20,000 instead of making an expected profit of $30,000. If the court determines that enforcement of the contract would be unconscionable, it is voidable by A.” Restatement (2d) of Contracts, § 153 (1979) (Illustration 1).

Corbin explains: “Suppose ... a bidding contractor makes an offer to supply specified goods or to do specified work for a definitely named price, and that he was caused to name this price by an antecedent error of computation. If, before acceptance, the offeree knows, or has reason to know, that a material error has been made, he is seldom mean enough to accept; and if he does accept, the courts have no difficulty in throwing him out. He is not permitted ‘to snap up’ such an offer and profit thereby. If, without knowledge of the mistake and before any revocation, he has accepted the offer, it is natural for him to feel a sense of disappointment at not getting a good bargain, when the offeror insists on withdrawal; but a just and reasonable man will not insist upon profiting by the other’s mistake. There are now many decisions to the effect that if the error was a substantial one and notice is given before the other party has made such a change of position that he cannot be put substantially in status quo, the bargain is voidable and rescission will be decreed.” Corbin on Contracts, § 609 (1960).

Georgia law is no different. It provides for rescission and cancellation “upon the ground of mistake of fact material to the contract of one party only.” OCGA § 23-2-31. The mistake must be an “unintentional act, omission, or error arising from ignorance, surprise, imposition, or misplaced confidence.” OCGA § 23-2-21 (a). But relief will be granted even in cases of negligence if the opposing party will not be prejudiced. OCGA § 23-2-32.

We can see these principles at work in M. J. McGough Co. v. Jane Lamb Memorial Hosp., 302 FSupp. 482 (SD Iowa 1969). In that case, a bid of $1,957,000 was submitted for a hospital improvement by a contractor. A bond in the amount of $100,000 was given to secure the contractor’s bid. The contractor submitted the lowest bid. After the bids were opened, but before its bid was accepted, the contractor informed the hospital that it erroneously transcribed numbers in computing the bid and that, therefore, it underbid the project by $199,800. Nevertheless, the hospital tried to hold the contractor to its bid. When the contractor refused to execute a contract, the hospital awarded the contract to the next lowest bidder. The contractor and surety sought rescission of the bid and the return of the bond. The hospital sued the contractor and surety for damages. The district court allowed the contractor to rescind. Its decision is noteworthy and illuminating. We quote it at length:

“By the overwhelming weight of authority a contractor may be relieved from a unilateral mistake in his bid by rescission under the proper circumstances. See generally Annot., 52 ALR2d 792 (1957). The prerequisites for obtaining such relief are: (1) the mistake is of such consequence that enforcement would be unconscionable; (2) the mistake must relate to the substance of the consideration; (3) the mistake. must have occurred regardless of the exercise of ordinary care; (4) it must be possible to place the other party in status quo. [Cits.] It is also generally required that the bidder give prompt notification of the mistake and his intention to withdraw. [Cits.] . . .

“Applying the criteria for rescission for a unilateral mistake to the circumstances in this case, it is clear that [the contractor] and his surety .... are entitled to equitable relief. The notification of mistake was promptly made, and [the contractor] made every possible effort to explain the circumstances of the mistake to the authorities of [the hospital]. Although [the hospital] argues to the contrary, the Court finds that notification of the mistake was received before acceptance of the bid. The mere opening of the bids did not constitute the acceptance of the lowest bid . . . Furthermore, it is generally held that acceptance prior to notification does not bar the right to equitable relief from a mistake in the bid. [Cits.]

“The mistake in this case was an honest error made in good faith. While a mistake in and of itself indicates some degree of lack of care or negligence, under the circumstances here there was not such a lack of care as to bar relief. . . .

“The mistake here was a simple clerical error. To allow [the hospital] to take advantage of this mistake would be unconscionable. This is especially true in light of the fact that they had actual knowledge of the mistake before the acceptance of the bid. [Cits.] Nor can it be seriously contended that a $199,800 error, amounting to approximately 10 percent of the bid, does not relate directly to the substance of the consideration. Furthermore, [the hospital] has suffered no actual damage by the withdrawal of the bid of [the contractor]. The Hospital has lost only what it sought to gain by taking advantage of [the contractor’s] mistake. [Cits.] Equitable considerations will not allow the recovery of the loss of bargain in this situation.” M. J. McGough Co. v. Jane Lamb Memorial Hosp., 302 FSupp. 482, 485, 486, supra.

In the case sub judice, Barber, the contractor, promptly notified the plaintiff that a mistake was made in calculating the amount of the bid. The plaintiff had actual knowledge of the mistake before it forwarded a contract to Barber. The mistake was a “simple clerical error.” M. J. McGough Co. v. Jane Lamb Memorial Hosp., 302 FSupp. 482, 485, supra. See OCGA § 23-2-21 (a). It did not amount to negligence preventing equitable relief. See OCGA § 23-2-32 (a). Furthermore, it was a mistake which was material to the contract (OCGA § 23-2-31) — it went to the substance of the consideration. (The mistake amounted to approximately seven percent of the bid.) To allow the plaintiff to take advantage of the mistake would not be just. M. J. McGough Co. v. Jane Lamb Memorial Hosp., supra at 486. See also Shelton & Co. v. Ellis, 70 Ga. 297 (1883).

The contention is made that Barber’s miscalculation constituted negligence sufficient to prevent relief in equity. See OCGA § 23-2-32 (a). Assuming, arguendo, that the error stemmed from such a want of prudence as to violate a legal duty (OCGA § 23-2-32 (a)), we must nevertheless conclude that Barber is entitled to rescission.

Decided January 9, 1989.

Fallin & McIntosh, Billy G. Fallin, Kirbo & McCalley, Thomas L. Kirbo III, for appellant.

Smith, Currie & Hancock, Neal J. Sweeney, David R. Tyndall, Whelchel, Whelchel & Carlton, Hoyt H. Whelchel, Jr., for appellees.

Relief in equity “may be granted even in cases of negligence by the complainant if it appears that the other party has not been prejudiced thereby.” OCGA § 23-2-32 (b). It cannot be said that plaintiff was prejudiced by Barber’s rescission. After all, plaintiff “lost only what it sought to gain by taking advantage of [the contractor’s] mistake.” M. J. McGough Co. v. Jane Lamb Memorial Hosp., supra at 486.

The plaintiff takes the position that rescission is improper since, pursuant to the language set forth in the bid, Barber agreed not to withdraw the bid for a period of 35 days after the bids were opened. It also asserts that the language set forth in the bidding instructions prohibited Barber from withdrawing the bid on the ground of “negligence.” We disagree. “[Provisions such as these have been considered many times in similar cases, and have never been held effective when equitable considerations dictate otherwise. [Cits.]” M. J. McGough Co. v. Jane Lamb Memorial Hosp., 302 FSupp. 482, 487, supra.

The trial court properly denied the plaintiff’s (the church’s) motion for summary judgment. It erred in denying defendants’ (Barber’s and The American Insurance Company’s) motions for summary judgment.

Judgment affirmed in Case No. 77340; judgment reversed in Case No. 77341.

Pope and Benham, JJ., concur.


author: Pope, Judge.

text:
    77478.
    POUNDS v. THE STATE.
    (377 SE2d 722)
   Pope, Judge.

Defendant Johnnie Pounds appeals from his conviction and sentence for the offense of armed robbery.

1. Defendant first contends that the trial court erred in admitting his confession into evidence because it was induced by hope of benefit in violation of OCGA § 24-3-50. “The benefit which [defendant] insists was an inducement to confess was a reduction in his bond. This argument fails for two reasons.

Decided January 9, 1989.

Robert H. Cofer II, for appellant.

Dennis C. Sanders, District Attorney, for appellee.

“First, the officer who took [defendant’s] statement testified that it was [defendant] who first raised the notion of a reduction of bail bond. [Likewise, the defendant testified that he decided to lie on myself’ so that he could get his bond reduced, be released and go home for a few hours to kill some hogs. The defendant also testified that the officer ‘didn’t ask me to lie on myself. I did it myself. He didn’t ask me to do that.’] That being so, [defendant’s] hope of benefit was not induced by another and would not serve to render his confession inadmissible. Dickey v. State, 157 Ga. App. 13 (1) (276 SE2d 75) [(1981)].

“Second, a hope of lighter punishment (induced by one other than the defendant) is usually the hope of benefit to which OCGA § 24-3-50 . . . refers. Presnell v. State, 241 Ga. 49 (5) (243 SE2d 496), revd. on other grounds, 439 U. S. 14 (99 SC 235, 58 LE2d 207) [(1978)]. In this case the only benefit involved was a reduction of bond. We find that to be in the same class of collateral benefits as were the promises of a solitary cell, a psychiatric examination and communication to the judge of the defendant’s cooperation in Presnell. See OCGA § 24-3-51. . . .” (Punctuation omitted.) Heard v. State, 165 Ga. App. 252, 253 (300 SE2d 213) (1983). Consequently, this enumeration is without merit. Accord Cooper v. State, 256 Ga. 234 (2) (347 SE2d 553) (1986); Hall v. State, 180 Ga. App. 366 (1) (349 SE2d 255) (1986).

2. Defendant also asserts error in the prosecutor’s waving in front of the defendant and the jury a document which, according to the defendant, contained evidence of past criminal activity. However, the record reveals that neither the document nor its contents were identified before the jury, that no testimony was elicited indicating the contents of the document and that the document was not introduced into evidence. This enumeration affords no basis for reversal.

Judgment affirmed.

McMurray, P. J., and Benham, J., concur.


author: Carley, Chief Judge.

text:
    77120.
    MOORE v. THE STATE.
    (377 SE2d 897)
   Carley, Chief Judge.

Appellant was tried before a jury and found guilty of burglary. He appeals from the judgment of conviction and sentence entered on the jury’s verdict.

Appellant enumerates the general grounds, urging that the evidence was entirely circumstantial and did not exclude every hypothesis save that of his guilt. A review of the transcript shows the following: The burglary occurred at an apartment and the burglar’s apparent point of entry and exit was a bedroom window. A resident of the apartment testified that the window was normally closed and locked. She also testified that appellant had never been in the apartment prior to the burglary. An expert witness testified that the only three identifiable latent fingerprints lifted from the interior portion of the window matched those of appellant. Appellant’s explanation for the presence of his fingerprints inside the window was that, prior to the commission of the burglary for which he was being tried, he had attempted to enter the apartment through the bedroom window. His admitted purpose for attempting to do so was to commit a theft therein. Appellant stated that he had placed his hands on the inside of the window but, when he could not get the window fully open, he had abandoned his plan.

“[T]his court [has] found the [S]tate failed to meet its burden [when] defendant offered an explanation regarding the innocent presence of his prints. . . .” (Emphasis supplied.) Brown v. State, 180 Ga. App. 188 (348 SE2d 575) (1986). “The mere finding of the defendant’s fingerprints on a window which has been broken to gain access to the house . . . where those [fingerprints] could have been lawfully made by the defendant ... is not sufficient to form the basis of a conviction.” (Emphasis supplied.) Anthony v. State, 85 Ga. App. 119, 121 (68 SE2d 150) (1951). “It is insufficient if the print is found at a time and place where the defendant might innocently have left it.” (Emphasis supplied.) Jeffares v. State, 162 Ga. App. 36 (290 SE2d 123) (1982). Appellant did not offer an innocent or lawful explanation for the presence of his fingerprints on the inside of the window. He testified that he had left his fingerprints inside the window during an earlier attempted burglary. Compare Brown v. State, supra at 188; Vaughn v. State, 136 Ga. App. 54 (220 SE2d 66) (1975); Anthony v. State, supra at 119. The jury was not required to believe that the fingerprints had been left at the earlier time but was authorized to find that appellant’s explanation was evidence of his commission of the instant burglary. “[T]here was sufficient similarity between the [previous attempted] burglary and the . . . burglary [here in issue] so that proof of the former tends to prove the latter. [Cit.] Therefore, proof that appellant was a party to the [previous attempted] burglary was admissible and probative evidence that appellant was likewise a party to the [subsequent] burglary.” Brown v. State, 163 Ga. App. 661, 663 (1) (295 SE2d 581) (1982).

“ ‘[I]n order to justify the inference of guilt beyond a reasonable doubt, circumstantial evidence must exclude only reasonable inferences and hypotheses and it is not necessary that such evidence be devoid of every inference or hypothesis except that of the defendant’s guilt. [Cit.] When a jury hears the evidence, it decides the questions as to reasonableness. If a jury is authorized to find that the evidence, circumstantial though it may be, is sufficient to exclude every reasonable hypothesis save that of guilt, the verdict of the jury will not be disturbed by the appellate court unless the verdict is insupportable as a matter of law. [Cits.]’ [Cit.]” (Emphasis in original.) Jones v. State, 156 Ga. App. 823, 824 (275 SE2d 712) (1980). Accordingly, after a review of the entire record, we find that a rational trior of fact could reasonably have found from the evidence adduced at trial proof of guilt of appellant beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). See Woodliff v. State, 158 Ga. App. 113 (279 SE2d 231) (1981).

Decided January 10, 1989.

Raymond A. Majors, Jr., for appellant.

Dupont K. Cheney, District Attorney, David C. Walker, J. Thomas Durden, Jr., Assistant District Attorneys, for appellee.

Judgment affirmed.

Deen, P. J., and Sognier, J., concur.


text:
    77615.
    THE STATE v. BURRELL.
    (377 SE2d 898)
   Benham, Judge.

Appellee, a member of the Rabun County Board of Commissioners, was indicted for malpractice in office, a penal offense prohibited by OCGA § 45-11-4. The State appeals the trial court’s order dismissing the indictment. OCGA § 5-7-1 (1).

The one-count indictment alleged that appellee, “being a member of the Board of Commissioners of Rabun County and while acting in his official capacity in the administration and under the color of his office, allow[ed] and cause[d] certain equipment, property of Rabun County, to wit: County trucks to be used for private business, to wit: the hauling of asphalt for the paving of the parking lot at Bi-Low’s Food Store in Clayton, Georgia, said act being unauthorized by law and in violation of his duties as County Commissioner.”

The crime “malpractice in office” is not statutorily defined. See OCGA § 45-11-4. The Supreme Court, however, stated that the term “malpractice in office,” as used in the statute, “means a wrongful or unjust doing of an act which the doer has no right to do, or failure to do what the law makes it his duty to do, with evil intent or motive or due to culpable neglect.” Cargile v. State, 194 Ga. 20 (hn. 2) (20 SE2d 416) (1942). Responding to an allegation that the expression “malpractice in office” was too vague and indefinite to be a valid penal statute, the Supreme Court ruled that the statute “was made sufficiently definite by construing the statute in connection with the laws defining the official’s duties. . . .” Steele v. State, 227 Ga. 653 (2) (182 SE2d 475) (1971). See also Cargile v. State, supra, Division 2; Phillips v. State, 127 Ga. App. 499, 501 (194 SE2d 278) (1972). The legislative act creating the Rabun County Board of Commissioners (Ga. L. 1969, pp. 2397-2403) gives the board “complete power, authority and control relative to county matters”; requires the board to establish rules and regulations for the expenditures of funds, for receipt of reports regarding county operating expenditures, and for budget submissions; and authorizes the board to act on all budget requests (Section 12). The board is empowered to make all purchases for the county, and purchases over $500 are to be by competitive bid. No funds may be expended by the board in violation of the competitive bid process (Section 13). The board is also empowered to hire a county attorney and assistants (Section 14); and is required to have made an annual audit of the county’s fiscal affairs and furnish it to other county officials (Section 15). However, “[t]he legislature has not seen fit to prohibit [Rabun] County officials from [permitting county property to be used for private purposes] . . . Therefore, while we. may believe such a practice is a moral violation of a public trust, . . . it cannot be considered an act which the commissioner had no lawful right to do. This count is defective and all proceedings based upon it are nugatory. [Cit.]” Phillips v. State, supra at 501.

The State argues that appellee’s act was unauthorized since neither the legislative act creating the board nor the general law confers upon the commissioners the right to authorize the use of public property for private purposes. That appellee’s act may have been unauthorized does not require the conclusion that it was an illegal criminal offense. The State’s interpretation of the malpractice in office statute would not withstand a constitutional attack. In order to survive an attack that it is void for vagueness and thereby violative of both the United States and Georgia Constitutions, a penal statute must “define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement. [Cit.] [A]n individual [must] be informed as to what actions a governmental authority prohibits with such clarity that he is not forced to speculate at the meaning of the law. [Cit.]” Brinkley v. State, 253 Ga. 541 (1) (322 SE2d 49) (1984). “[B]y the mere act of assuming public-office [,] the officer surrenders no part of his right as an individual to be protected against the infliction of a penalty of either fine or imprisonment unless he has been convicted under a valid statute defining the offense with sufficient definiteness.” Cargile v. State, supra at 24-25.

Decided January 10, 1989.

Michael H. Crawford, District Attorney, for appellant.

Cathey & Strain, Dennis T. Cathey, for appellee.

Before appellee may be tried on the allegation that an act of his was a criminal offense, he must be made aware of what actions constitute a criminal offense. The statutes outlining a commissioner’s duties do not forbid the use of public property for private purposes. Therefore, appellant was not clearly informed that his actions were criminal. The trial court did not err in dismissing the indictment returned against appellee for malpractice in office.

Judgment affirmed.

McMurray, P. J., and Pope, J., concur.


text:
    77768.
    HUGHES v. MONTGOMERY CONTRACTING COMPANY, INC.
    (377 SE2d 723)
   Banke, Presiding Judge.

The appellant filed suit against the appellee on February 3, 1988, to recover damages arising from an automobile collision which was alleged to have occurred on June 18, 1985. The complaint alleged that the statute of limitation for filing the action had been tolled by OCGA § 9-3-90 because the appellant had been incarcerated for a period of time following the accident. The appellee filed a motion for summary judgment on April 13, 1988, pointing out that by virtue of a 1984 amendment to OCGA § 9-3-90, imprisonment no longer operates to toll the limitation period for filing a lawsuit. See Ga. L. 1984, p. 580 § I-

A hearing on the motion for summary judgment was initially set for May 13, 1988, but was rescheduled for May 26 at the appellant’s request. When the appellant did not appear at the rescheduled hearing, the trial court announced that the motion for summary judgment would be granted and asked the appellee to draw an order. On June 2, 1988, the appellee submitted such an order, but on that same day the appellant amended his complaint to allege that the statute of limitation had been tolled pursuant to OCGA § 9-3-90 (a) (as amended by Ga. L. 1984, p. 580, § 1), due to mental disability on his part. An order granting the motion for summary judgment was ultimately entered on July 22, 1988, following a hearing held on June 27, 1988. The appellant contends on appeal that the appellee failed to pierce the allegations of his amended complaint with regard to the tolling of the limitation period and that the grant of summary judgment was consequently improper. The appellee contends that the grant of the motion was authorized based on the appellant’s failure to file a timely response to it, in accordance with Rule 6.2 of the Uniform Rules of the Superior Court. Held:

“Rule 6.2 requires opposition response to motions to be filed within thirty days of the service of the motion. Rule 6.5 requires that a response to a motion for summary judgment ‘shall include a separate, short and concise statement of each of the material facts as to which it is contended there exists a genuine issue to be tried.’ As stated in Mills v. J. E. Sharber Oil Co., 181 Ga. App. 81, 82 (351 SE2d 275) (1986), and as is apparent from the holding in Jacobsen v. Muller, 181 Ga. App. 382 (2) (352 SE2d 604) (1986), . . . [these] requirements are in addition to those set out in the Civil Practice Act.” West v. Nodvin, 183 Ga. App. 645, 646 (1) (359 SE2d 729) (1987). Accord Spikes v. Citizens State Bank, 179 Ga. App. 479 (1) (347 SE2d 310) (1986). However, “[t]here is no such thing as a ‘default summary judgment.’ By failing to respond to a motion for summary judgment, a party merely waives his right to present evidence in opposition to the motion. It does not automatically follow that the motion should be granted. ‘A motion for summary judgment should not be granted unless it affirmatively appears from the pleadings and evidence that the party so moving is entitled to prevail.’ [Cit.]” McGivern v. First Capital Income Properties, 188 Ga. App. 716, 717 (373 SE2d 817) (1988).

By the time the trial judge entered his ruling on the motion for summary judgment in this case, the appellant had long since amended his complaint to allege that the statute of limitation had been tolled due to mental disability on his part. Although, as indicated above, a party may lose the right to submit evidence in opposition to a motion for summary judgment if he does not exercise that right within 30 days following service of the motion, the Civil Practice Act specifies unequivocally that “[a] party may amend his pleading as a matter of course and without leave of court at any time before the entry of a pretrial order.” OCGA § 9-11-15 (a). As the record before us contains no evidence one way or the other on the issue of the appellant’s purported mental disability, and as the moving party has the burden on motion for summary judgment of establishing by uncontroverted evidence that there is no material factual dispute in the case, see, e.g., Nichols v. Frey, 185 Ga. App. 829, 831 (366 SE2d 212) (1988), we must accordingly hold that the trial court erred in granting the appellee’s motion for summary judgment.

Judgment reversed.

Birdsong and Beasley, JJ., concur.

Decided January 10, 1989.

Ben Swain McElmurray, Jr., for appellant.

Fulcher, Hagler, Reed, Obenshain, Hanks & Harper, John I. Harper, for appellee.


text:
    77893.
    STEWART BROTHERS, INC. v. ALLEN.
    (377 SE2d 724)
   Banke, Presiding Judge.

Stewart Brothers, Inc., sued S. Meyers & Associates, Inc., to recover an alleged account indebtedness for asphalt paving services. The complaint was subsequently amended to name the defendant corporation’s president and sole shareholder, Steven Meyers Allen, as an additional defendant. Allen was alleged to have disregarded the separate legal identity of the corporation by commingling its records and finances with his own, thereby rendering himself personally liable for its debts. The case was tried before a jury, which returned a verdict in favor of Stewart Brothers on its claim against the defendant corporation. However, based on a determination that there was no evidence which would warrant the “piercing” of the “corporate veil,” the trial court directed a verdict in favor of Allen, thereby prompting Stewart Brothers to file this appeal. Held:

1. “Courts permit ‘piercing the corporate veil’ ‘in situations where the parties involved have themselves disregarded the separateness of legal entities by a commingling and confusion of properties, records, control, etc.’ [Cits.] It is obvious that if the individual who is the principal shareholder or owner of the corporation conducts his private and corporate business on an interchangeable or joint basis as if they were one, then he is without standing to complain when an injured party does the same. ‘Under such circumstances, the court may disregard the corporate entity.’ [Cits.]” Bone Constr. Co. v. Lewis, 148 Ga. App. 61, 63 (250 SE2d 851) (1978).

No evidence whatever was introduced in this case to suggest that Allen commingled or confused the defendant corporation’s records, assets, or finances with his own. Although there was evidence that Allen had repeatedly borrowed corporate funds by writing himself checks on the corporate checking account, these checks were clearly identified as loans in the checkbook, and it was shown that Allen had periodically made deposits to the corporate account towards the repayment of these loans. Absent any indication that Allen had commingled the corporation’s finances with his own, appropriated the corporation’s assets to his personal use, or otherwise used the corporation as a “mere instrumentality” for the transaction of his own personal affairs, we conclude that the existence of these clearly identified loans was not in and of itself sufficient to evidence a disregard by Allen of the corporation’s separate identity. We accordingly hold that the trial court did not err in granting Allen’s motion for directed verdict. Accord Earnest v. Merck, 183 Ga. App. 271 (358 SE2d 661) (1987); Jenkins v. Judith Sans Intl., 175 Ga. App. 171 (1) (332 SE2d 687) (1985). Compare Abbott Foods v. Elberton Poultry Co., 173 Ga. App. 672 (327 SE2d 751) (1985) (where the president and principal shareholder of the corporation had not only paid himself “salary advances” from the corporation’s checking account, but had used the corporation’s funds to purchase another company’s stock in his own name — with the proceeds going to the corporation’s only other shareholder — and to make loan and insurance payments on his personal automobile); Sheppard v. Tribble Heating &c., 163 Ga. App. 732 (1) (294 SE2d 572) (1982) (where the defendant had intermingled his personal finances with those of the corporation by depositing checks from the sale of corporate property to his personal bank account and by using the corporation’s assets to purchase land in his own name and to pay off personal loans).

2. The appellant contends that the trial court erred in disallowing certain evidence pertaining to another corporation which Allen had formed at about the same time the corporation named as a defendant in the present action became insolvent. In the absence of any showing that the assets of the defendant corporation were improperly channeled into this new corporation or that the finances or business dealings of the two companies somehow were confused or intermingled, we conclude that there was similarly no basis upon which this new corporation could be considered anything other than a separate legal entity. Accord Southern Keyboards v. Wagnon Constr. &c. Co., 163 Ga. App. 590, 591 (295 SE2d 558) (1982); Trans-State v. Barber, 170 Ga. App. 372 (1) (317 SE2d 242) (1984). We accordingly hold that proffered evidence was properly disallowed as irrelevant to the issues being tried.

3. The trial court similarly did not err in disallowing as irrelevant certain evidence regarding unpaid judgments which had previously been entered against the defendant corporation. These judgments merely demonstrated, if anything, that the corporation was unable to pay its debts. If such evidence were considered sufficient in and of itself to warrant piercing the corporate veil, that veil would be thin indeed.

Judgment affirmed.

Birdsong and Beasley, JJ., concur.

Decided January 10, 1989.

Robin S. Nash, for appellant.

Edwin L. Hoffman, for appellee.