text:
    73892.
    TUCKER v. THE STATE.
    (356 SE2d 559)
   McMurray, Presiding Judge.

Defendant appeals his conviction of “attempt to commit arson in the first degree.” The sole enumeration of error raises the sufficiency of the evidence. Held:

The State’s evidence shows that Carolyn Simpson, along with her mother, husband and two children, live in a house in Gainesville. On the day in question defendant, the father of one of Carolyn Simpson’s children, was present and was involved in an argument with Carolyn Simpson. Defendant left the home and returned six or seven minutes later with a quantity of gasoline, pouring or shaking the gasoline from an oil can on the house and surrounding hedge bushes. A red and yellow gasoline can containing gasoline was also seen in defendant’s possession. Defendant “had a blue lighter in his hand, but he never did strike it or nothing.” Carolyn Simpson called the police and told them to come because someone was trying to set fire to the house. Defendant left before both police and fire departments arrived in response to the call. The police found a “strong odor of gasoline coming from around the hedges in front of the house.” The odor of gasoline was also detected by police at other locations around the house.

“ ‘An attempt to commit a crime consists of three elements: first, the intent to commit the crime; second, the performance of some overt act towards the commission of the crime . . .; and third, a failure to consummate its commission.’ Alexander v. State, 66 Ga. App. 708, 711 (19 SE2d 353) (1942).” Howell v. State, 157 Ga. App. 451, 454 (4) (278 SE2d 43). Criminal intent may be found by the jury “upon consideration of the words, conduct, demeanor, motive and all other circumstances connected with the act for which the accused is prosecuted.” OCGA § 16-2-6. The intention may be gathered from the circumstances of the case as proved. “In seeking the motives of human conduct, inferences and deductions may properly be considered where they flow naturally from the facts proved.” Fears v. State, 152 Ga. App. 817, 820-821 (2) (264 SE2d 284). “ ‘In order to constitute the offense of attempt to commit a crime, the accused must do some act towards its commission. Commission means the act of committing, doing, or performing; the act of perpetrating. . . . Mere acts of preparation, not proximately leading to the consummation of the intended crime, will not suffice to establish an attempt to commit it.’ Groves v. State, 116 Ga. 516 (42 SE 799) (1902). The Supreme Court continued, ‘ “To constitute an attempt there must be an act done in pursuance of the intent, and more or less directly tending to the commission of the crime. In general, the act must be inexplicable as a lawful act, and must be more than mere preparation. Yet it can not accurately be said that no preparations can amount to an attempt. It is a question of degree, and depends upon the circumstances of each case.” ’ Id. at 517-518; Bell v. State, 118 Ga. App. 291 (163 SE2d 323) (1968). In the language of our Criminal Code, such an act must constitute, ‘a substantial step toward the commission of that crime.’ [OCGA § 16-4-1.]” Howell v. State, 157 Ga. App. 451, 455 (4), supra. In the case sub judice, the defendant’s action in spreading the gasoline is inexplicable as a lawful act would be proximately connected with the completed crime and contrary to defendant’s evidence (that he had no means available to ignite the gasoline), the State’s evidence shows an apparent possibility to complete the crime. See Fears v. State, 152 Ga. App. 817, 821 (2), supra. After a review of the entire record, we find that a rational trier of fact could reasonably have found defendant guilty, beyond a reasonable doubt, of the offense charged. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560); Nelson v. State, 181 Ga. App. 455, 456 (1) (352 SE2d 636).

Decided April 14, 1987.

L. Eddie Benton, Jr., for appellant.

Bruce L. Udolf, District Attorney, Daniel A. Summer, Assistant District Attorney, for appellee.

Judgment affirmed.

Sognier and Beasley, JJ., concur.


source: Caselaw Access Project

author: McMurray, Presiding Judge.

license: Public Domain

text:
    73947.
    BLAND v. THE STATE.
    (356 SE2d 704)
   McMurray, Presiding Judge.

Defendant was charged by a three-count indictment with the offenses of burglary, aggravated assault (with intent to rape) and robbery (by intimidation). The indictment alleges that each crime was committed against the person or property of “Blossom Henderson.” At trial the evidence showed that the three offenses all arose from the same incident in which defendant forced his way into the victim’s home, assaulted the victim and took the cash she had in her purse. The victim testified that her name was Daisy M. Henderson. At the close of the State’s evidence defendant moved for a directed verdict of acquittal, contending that a fatal variance existed in that there was no evidence that Blossom Henderson and the victim Daisy M. Henderson were the same person. The trial court denied defendant’s motion and defendant was convicted on all three counts. On appeal defendant’s sole enumeration of error raises the denial of his motion for directed verdict of acquittal. Held:

Contrary to defendant’s assertion there is sufficient evidence that Blossom Henderson and Daisy M. Henderson are one and the same person. This may be demonstrated by the testimony of Officer Slocumb of the Monticello Police Department who testified that he was dispatched to “Blossom Henderson’s residence,” and informed that there had been a burglary and attempted rape. He was also informed to be “on the lookout for a black male, wearing a light blue shirt and a pair of gray shorts.” Upon encountering defendant, who matched this description and who had a fresh scratch on his face, Officer Slocumb arrested defendant and proceeded on to Mrs. Henderson’s home. The testimony of Officer Slocumb and the victim who identified herself at trial as Daisy M. Henderson is clear that the Mrs. Henderson’s at whose house the officer arrived was Daisy M. Henderson. Since the officer had been dispatched to the home of Blossom Henderson some evidence is thus presented that the two names represent the same person. Additionally, there was evidence of another witness regarding an encounter with defendant on the morning of the crimes only forty or fifty yards from the home of Blossom Henderson and testimony by the victim that such encounter was witnessed by her. The evidence was sufficient to enable any rational trier of fact to have found beyond a reasonable doubt that Blossom Henderson and Daisy M. Henderson were the same person. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560).

We find no fatal variance between the allegations and proof under the criteria adopted in DePalma v. State, 225 Ga. 465, 469 (3) (169 SE2d 801). The accused was definitely informed as to the charges against him and we note in connection with the above identity issue that on voir dire defense counsel used Blossom Henderson and Daisy Henderson together and interchangeably to refer to the victim. Clearly, defendant did not go to trial unaware of the identity of the alleged victim. Additionally, we find that defendant stands protected against further prosecution for the involved offenses. See DePalma v. State, 225 Ga. 465, 469 (3), supra, and Jones v. State, 148 Ga. App. 637 (1) (252 SE2d 65). In the case sub judice, there was sufficient evidence to enable any rational trier of fact to find defendant guilty beyond a reasonable doubt of the offenses charged. Jackson v. Virginia, 443 U. S. 307, supra; Keeler v. State, 181 Ga. App. 208, 209 (1) (351 SE2d 731). Therefore, the trial court did not err in denying defendant’s motion for directed verdict of acquittal. Humphrey v. State, 252 Ga. 525, 527 (1) (314 SE2d 436).

Decided April 14, 1987.

Shane M. Geeter, for appellant.

Joseph H. Briley, District Attorney, for appellee.

Judgment affirmed.

Sognier and Beasley, JJ., concur.


text:
    74018.
    PEREZ v. THE STATE.
    (356 SE2d 706)
   McMurray, Presiding Judge.

The defendant was convicted of the offense of aggravated assault.

The evidence adduced at trial, viewed in favor of the verdict, shows that on the evening of February 17, 1986 the victim, Maddox, and his girl friend, Dima, went to defendant’s apartment to talk about some money defendant owed Maddox. Defendant told Maddox he did not have the money then, but to come back the next morning and he would pay him. The following morning about 8:30 or 9:00, Maddox called defendant. Defendant’s girl friend, Holley, answered the telephone and told Maddox that defendant was asleep and would not come to the phone. After attending to some business Maddox and Dima arrived at defendant’s apartment about 10:30 or 11:00 a.m. and were greeted by Holley, who asked them to come in and sit down while defendant was in the bedroom getting dressed. Another man, White, was sitting on the couch. The testimony at trial disclosed that while the four of them sat around chatting, defendant came out of the bedroom and approached Maddox out of his line of vision, grabbed him by the hair on the top of his head, pulled his head back, and put a knife to his throat. Maddox stood up and snapped his head back trying to get defendant to let go of his hair so he could escape, and felt blood coming out of his neck. Maddox and Dima ran from the apartment and went to Med-First where the doctor used 60 stitches to close the wound in Maddox’s throat. Neither Maddox nor Dima was armed and there were no harsh words exchanged prior to the attack. The DeKalb County police were called and went to defendant’s apartment where they were admitted by Holley and found defendant hiding in a closet. The investigator identified himself to defendant, told him he was under arrest, showed him the arrest warrant and read him the Miranda (Miranda v. Arizona, 384 U. S. 436 (86 SC 1602, 16 LE2d 694)) rights. The investigator noticed blood on the carpet between the sofa and the front door, and during interrogation at the police department the investigator told defendant he would have to get a search warrant to look for evidence in defendant’s apartment. Defendant told him that it would not be necessary, “that, in fact, it was the blood of the victim” on the carpet. Defendant’s motion for new trial was denied and he now appeals. Held:

1. The evidence was sufficient for a rational trier of fact to find defendant guilty of aggravated assault beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); Hiers v. State, 179 Ga. App. 181 (345 SE2d 900) (1986).

2. The trial court did not err in refusing to give defendant’s requested charge concerning the lack of an obligation of an accused to retreat where he has a reasonable fear of a felonious assault, as such an instruction was not adjusted to the evidence. Cf. Smith v. State, 180 Ga. App. 422, 424 (2) (349 SE2d 279) (1986). Although defendant testified that Maddox had been “harassing” him to repay the $40 he owed him, there was no evidence from any of the four eyewitnesses that Maddox spoke any harsh words or made any threatening moves toward defendant prior to the attack which would reasonably cause defendant to fear an assault. Indeed, defendant’s girl friend Holley testified that she thought the cut suffered by Maddox was an accident, and that “it wasn’t like [defendant] was being attacked and he had to defend himself.” See generally Crosby v. State, 150 Ga. App. 555, 556 (2) (258 SE2d 264) (1979).

3. Defendant contends that the trial court improperly allowed the State to put his character in evidence. After he testified under direct examination that he owed money to Maddox for drugs, he was asked by the prosecutor if he was just a drug user, not a drug seller. No objection was made to the question and defendant explained at some length that he started using methamphetamines to stay awake while he was a truck driver. The State further questioned defendant about a gun which he testified Maddox had sold him, to which he objected on grounds of relevancy and was overruled. When defendant denied owning a gun prior to January of 1986 the State brought up an incident where he was charged with stealing a gun in September of 1985. Upon objection, the court permitted the State to question defendant about having a gun in his possession at that time, but disallowed introduction of any conviction. Finally, the State asked defendant about a statement he had made to a police investigator while he was in jail concerning information he had about some forgeries and drug dealings. Defendant responded loquaciously without objection, but argues on appeal that he merely answered the State’s improper questions rather than putting his character in issue.

This position is tenuous at best. However, by failing to object contemporaneously with the testimony and continuing to explain his actions, defendant waived any error. Cape v. State, 246 Ga. 520, 524 (5) (272 SE2d 487) (1980). See also Merritt v. State, 255 Ga. 459 (2) (339 SE2d 594) (1986); Doby v. State, 173 Ga. App. 348 (3) (326 SE2d 506) (1985). The evidence concerning possession of the gun was clearly relevant in rebuttal to defendant’s testimony. “Thus the objection as made was properly overruled. [Cit.] Furthermore, ‘(e)vidence that is otherwise relevant or material to the issues in a criminal case does not become inadmissible simply because it concerns separate offenses, or because it incidentally puts a criminal defendant’s character or reputation in evidence. (Cit.)’ [Cit.] Thus the testimony would have been admissible even over the objection that it placed the defendant’s character in issue.” Dixon v. State, 177 Ga. App. 506, 507 (2) (339 SE2d 775) (1986).

Decided April 14, 1987,

Carl P. Greenberg, for appellant.

Robert E. Wilson, District Attorney, Barbara Conroy, R. Stephen Roberts, Assistant District Attorneys, for appellee.

4. Likewise, no reversible error occurred from the failure of the trial court to make a finding of voluntariness before allowing admission of defendant’s custodial statement. Defendant made no objection to the testimony of the police investigator in regard to his reading the Miranda rights and defendant’s signing of the waiver and admission that the blood on the carpet was the victim’s. Nor did defendant request a Jackson v. Denno, (378 U. S. 368 (84 SC 1774, 12 LE2d 908)) hearing or assert that his statement was involuntarily given. In fact, he testified that he was not threatened, coerced or intimidated, but “was more than willing to make a statement.” He also stated that he was read the Miranda rights and understood them.

“In Wainright v. Sykes, 433 U. S. 72, 86 (97 SC 2497, 53 LE2d 594), reh. den., 434 U. S. 880 (1977), the Supreme Court held that due process does not require a voluntariness hearing absent some contemporaneous challenge to the use of the confession. Therefore, appellant had a right to a voluntariness hearing only upon challenging the alleged confession’s introduction into evidence. [Cits.] It follows that this enumeration of error presents no ground for reversal.” Pruitt v. State, 176 Ga. App. 317, 320 (3) (335 SE2d 724) (1985). Accord Brogdon v. State, 255 Ga. 64, 66 (2) (335 SE2d 383) (1985).

Judgment affirmed.

Sognier and Beasley, JJ., concur.


text:
    74057.
    GRANT v. RIVERS.
    (356 SE2d 560)
   McMurray, Presiding Judge.

Plaintiff Lee Grant filed a verified complaint for injunctive relief and declaratory judgment against defendant Rivers, in which he alleged that on December 15, 1985, he and Rivers entered into an oral contract for him to purchase from Rivers a described trailer for a price of $4,500; that he paid Rivers $500 on December 15, 1985, and was to pay no less than $200 on the fifteenth of each month until he had paid a total of $4,500; that under the terms of the agreement he was entitled to be in possession of the trailer beginning December 15, 1985, but Rivers was to retain title; and that he had taken possession of the trailer and used it as his principal residence at all times since that date.

Rivers filed a verified response and counterclaim in which he admitted the jurisdiction of the court and the terms of the agreement as alleged by Grant, but denied all the other allegations. A trial was held, without the intervention of a jury, at which no transcript of the proceedings was made. After hearing the evidence the court entered a judgment in favor of Rivers for $3,600 principal, plus interest, finding that Grant and Rivers had entered into an agreement on December 15, 1985, under which Grant was to purchase Rivers’ trailer for $4,500 and was “to pay all outstanding contracted balance on or before the expiration of ninety (90) days from the date of agreement”; but that Grant had not offered the outstanding balance under the agreement after making an initial down payment of $500 and payments of $200 each in January and February 1986. Grant now appeals from that judgment. Held:

Grant asserts on appeal that the trial court erred in finding that he contracted to pay Rivers the full purchase price of the trailer within 90 days because, by admitting the allegations of the complaint as to the terms of the agreement, Rivers made a solemn admission in judicio which was binding both upon himself and the court. We agree. There is no transcript to show what evidence may have been submitted by Rivers to cause the trial court to rule as it did. But in any event, having admitted in his answer to the terms of the agreement as alleged by Grant, Rivers was bound thereby and, so long as those admissions remained unstricken or unamended, was estopped to present evidence to the contrary. OCGA § 24-3-30; Petkas v. Wright Co., 87 Ga. App. 189 (2) (73 SE2d 224) (1952). Accord Advanced Contouring v. McMillan Div., 179 Ga. App. 128 (345 SE2d 666) (1986); Whitt v. Walker County, 176 Ga. App. 643, 646 (337 SE2d 425) (1985); Hill v. Gen. Rediscount Corp., 116 Ga. App. 459 (2) (157 SE2d 888) (1967). The Civil Practice Act did not abrogate this rule. Anderson v. Oakley, 133 Ga. App. 758, 759 (1) (212 SE2d 875) (1975). Accordingly, the judgment of the trial court must be reversed and the case remanded to the trial court since that portion of the judgment contradicting this admission is in error and must be reformed to reflect the agreement that Grant was to pay the outstanding balance of the amount owed at the rate of no less than $200 a month until paid in full.

Decided April 14, 1987.

Benjamin W. Studdard III, for appellant.

Ray M. Tucker, for appellee.

Judgment reversed and case remanded with direction.

Sognier and Beasley, JJ., concur.


author: Carley, Judge.

text:
    73608.
    ALSTON et al. v. BROWN TRANSPORT CORPORATION.
    (356 SE2d 517)
   Carley, Judge.

Appellant-plaintiffs are current and former employees of appellee-defendant Brown Transport Corporation. Count 1 of appellants’ complaint alleged that agents for appellee had made fraudulent oral misrepresentations in order to induce them to accept or maintain employment with appellee. In Count 2, appellants asserted a breach of contract claim based upon appellee’s failure to perform according to the alleged oral promises.

Appellee moved for summary judgment. The undisputed evidence showed that appellants were hired by appellee as “casual” dockworkers and that they had never executed written contracts of employment. Appellants’ employment was for an indefinite period, and, consequently, was terminable at the will of either party. See generally OCGA § 34-7-1; Ga. Power Co. v. Busbin, 242 Ga. 612, 613 (1) (250 SE2d 442) (1978). On this evidence, the trial court granted appellee’s motion. Appellants appeal from the grant of summary judgment in favor of appellee.

1. The alleged misrepresentation underlying the fraud claims is the oral promise by appellee’s agents that, upon appellants’ completion of 90 days employment as “casual” dockworkers, they would be promoted to positions as “regular” dockworkers and, as the result of that promotion, they would receive pay and benefit increases. “Actionable fraud cannot be based on statements and promises as to future events. [Cits.] ‘Fraud cannot be predicated upon statements which are promissory in their nature as to future acts.’ [Cits.] There is no question that the promises made by [appellee’s] agent[s] to [appellants] were prospective in nature and therefore fall within the ambit of this rule. Nor does actionable fraud result from a mere failure to perform promises made. [Cit.]” Ely v. Stratoflex, Inc., 132 Ga. App. 569, 571 (2) (208 SE2d 583) (1974).

Appellants urge, however, that the promises of a future promotion that were made to them are actionable, in that their fraud claims come within an exception to the general rule stated above. The cases upon which appellants rely “hold that fraud may be predicated on a promise made with a present intention not to perform. [Cits.]. . . . However, such exception has no application to this case because the promises upon which the [appellants rely] for establishing fraud were unenforceable even absent any fraud at the time of their utterance. The oral promises could not be enforced because the underlying employment contract, being terminable at will, is unenforceable.” Ely v. Stratoflex, supra at 572. See also Buice v. Gulf Oil Corp., 172 Ga. App. 93 (322 SE2d 103) (1984); Murphine v. Hosp. Auth. of Floyd County, 151 Ga. App. 722 (261 SE2d 457) (1979).

The trial court did not err in granting appellee’s motion for summary judgment as to appellants’ fraud claims.

2. With respect to their breach of contract claims, appellants contend that they are merely seeking to recover unpaid wages for their past employment by appellee. However, appellants are not seeking unpaid wages due them in their existing or former capacities as “casual” dockworkers. Appellants are attempting to recover for the increased wages they would have received had they been promoted to the new position of “regular” dockworker. Appellants’ underlying “contract was for an indefinite term and was terminable at will; and, ... no claim for failure to promote can be maintained. ‘It is the general rule that a hiring indefinite as to time is terminable at the will of either party and creates no executory obligations.’ [Cit.] ‘The oral promises could not be enforced because the underlying employment contract, being terminable at will, is unenforceable.’ [Cit.]” Murphine v. Hosp. Auth. of Floyd County, supra at 723. “Any attempt by the plaintiff to base a recovery on oral promises that his. pay would be increased in the future must also fail, as the underlying employment contract was terminable at will.” Walker v. Gen. Motors Corp., 152 Ga. App. 526, 527 (1) (263 SE2d 266) (1979). There was no error in the trial court’s grant of summary judgment in favor of appellee as to the breach of contract claims.

3. There being no genuine issue of any material fact remaining, the trial court did not err in granting appellee’s motion for summary judgment. Jacobs v. Ga.-Pacific Corp., 172 Ga. App. 319 (323 SE2d 328) (1984).

Judgment affirmed.

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

Decided March 19, 1987

Rehearing denied April 15, 1987

Charles L. Martin, Alice D. Bonner, for appellants.

Stanford G. Wilson, for appellee.


author: Benham, Judge.

text:
    73782.
    DENNIS v. NATIONAL BANK OF GEORGIA.
    (356 SE2d 563)
   Benham, Judge.

Appellee National Bank of Georgia sued appellant Dennis on March 8, 1986, for an $8,000 dishonored check. Appellant was served on March 18, but did not file an answer. On April 25, appellee filed an amended complaint, which was also not answered. On May 22, appellant filed a motion to open default, claiming that he had prepared a timely answer and discovery which was served on appellee, but had inadvertently failed to file the original answer with the court. After both parties had filed briefs on the default issue, the trial court denied appellant’s motion and entered judgment in appellee’s favor on its $8,000 claim. Appellant would have us reverse the denial of his motion. We affirm.

1. Appellant’s enumeration of error asks the question, “Is this a proper case to open default?” Our answer is no. OCGA § 9-11-55 (b) states, “At any time before final judgment, the court, in its discretion, upon payment of costs, may allow the default to be opened . . . where the judge, from all the facts, shall determine that a proper case has been made for the default to be opened, on terms to be fixed by the court.” (Emphasis supplied.)

Appellant does not indicate, nor do we find anything in the record to show, that appellant met his statutory obligation to pay the costs before the trial court ruled upon his motion. There is only a showing that he offered to pay them if his motion were granted. In absence of the actual payment, the court could not allow default to be opened. “Assuming a movant’s compliance with the other conditions in [OCGA § 9-11-55 (b)], a trial court is authorized to grant a motion to open a default so long as the movant has paid the costs prior to the grant of said motion. [Cit.] . . . [The] trial court is without discretion to grant a motion to open a default when the movant has only offered to pay the costs upon the motion being granted. . . .” Copeland v. Carter, 247 Ga. 542 (1) (277 SE2d 500) (1981). The trial court did not err in denying appellant’s motion to open default.

2. Appellant’s second enumeration of error asks the question, “Was appellant entitled to a hearing on his motion to open default?” He argues that Rule 6.3 of the Uniform Rules for the Superior Court (253 Ga. 798, 817) may conflict with Livesay v. King, 129 Ga. App. 751 (201 SE2d 178) (1973), a pre-Rules case, on the question whether or not the trial court is required to conduct a hearing on a motion to open default.

Decided April 15, 1987.

Fred A. Gilbert, for appellant.

Mark A. Baker, Lee S. Alexander, for appellee.

The reasoning and rationale of Spikes v. Citizens State Bank, 179 Ga. App. 479 (1) (347 SE2d 310) (1986), applies in the situation before us. Here, as there, appellant filed his motion and the parties filed briefs, but did not request an oral hearing. The trial court ruled on appellant’s motion after both sides had filed their briefs and supporting material. This is clearly not a case in which the trial court ruled ex parte or without a hearing as was done in Livesay, as appellant suggests. A “hearing” does not always mean oral argument, but may be “by means of the trial court’s review of the parties’ contentions as filed.” Spikes at 480. Under Rule 6.3, appellant need only have requested an oral hearing, and it would have been granted. Appellant’s situation differs from Livesay in that both parties here had ample opportunity to respond to or defend against the proposed action. The trial court did not err in ruling as it did, based on the material in the record.

Appellant would have this court consider additional material, stipulated to by appellee’s counsel and included in appellant’s brief, as a basis for reversing the trial court’s findings. We cannot consider the material, as it was never filed with the trial court and was not a part of the record sent to this court by the clerk of the trial court. The stipulation of opposing counsel as to its relevance and authenticity does not affect our decision. We must take our evidence from the record. Leathers v. Timex Corp., 174 Ga. App. 430 (1) (330 SE2d 102) (1985); Powell v. Griffith, 38 Ga. App. 40 (1) (142 SE 466) (1928).

Judgment affirmed.

Birdsong, C. J., and Carley, J., concur. Banke, P. J., disqualified.


author: Birdsong, Chief Judge.

text:
    73841.
    ANGLIN v. THE STATE.
    (356 SE2d 564)
   Birdsong, Chief Judge.

Johnny Anglin was convicted of burglary, possession of tools for commission of a burglary, and carrying a concealed weapon. He was sentenced to 15 years for the burglary, 5 for possession of the burglary tools and 12 months for possession of the concealed weapon, all to be served concurrently. Anglin brings this appeal enumerating two asserted errors. Held:

1. In his second enumerated error, Anglin complains the evidence was not sufficient to support the verdict of guilty. We disagree. Evidence adduced by the State established that a silent alarm was activated at a grocery store. Police responded and the first two officers on the scene observed in the well-lit interior of the store a black male lifting boxes of merchandise above his head and passing the boxes through a window to an unseen person on the outside. That there was another person outside the store was manifested by the fact that the boxes were not being dropped to the outside. One officer went to the rear of the store to determine the point of entry and stop the intruder within from escaping from the rear. This officer cautiously peeked around the edge of the building and observed another black male sans shirt and dressed in blue jeans. This person was subsequently identified without equivocation as being the appellant Anglin. Anglin saw the officer at about the same moment. Anglin fled, being chased by the officer. Anglin and the first officer passed directly by the second officer who had remained at the front of the store. That officer also identified Anglin. Apparently prior to passing boxes out the window, the money box in the store had been rifled and $38 and some cents had been removed therefrom. When Anglin was captured and searched, wadded bills and change in his pants pocket disclosed $38 and some cents. In his back pants pocket, a large knife was found. Lastly in a box lying on the ground together with boxes of merchandise from the store, was found a crowbar and a pair of channel locks, a form of pliers. We have no hesitancy in concluding that the evidence presented to the jury was more than sufficient to convince a jury of rational persons of Anglin’s guilt of all three charges beyond reasonable doubt. Jackson v. Virginia, 433 U. S. 307 (99 SC 2781, 61 LE2d 560).

2. We are not so sanguine, however, in relation to the first enumeration of error. Anglin took the stand and testified in his own behalf. In his testimony, Anglin in effect offered evidence of a confession and avoidance. He testified that he was proceeding home from a party. As he passed the store, he heard a noise. He went to investigate and saw two unidentified persons standing near the store at a large accumulation of merchandise including cigarettes and toilet articles. When the two men saw him, they fled. Anglin decided to take some of the cigarettes and toilet articles. He advanced toward the merchandise and stepped upon a large knife. That seemed attractive to him so he picked it up and placed it in his rear pocket. He took off his shirt to form a receptacle to carry cigarettes. As he bent over to pick up some of the cigarettes, he heard someone shout: “Freeze!” Becoming frightened, he fled. Thus Anglin admitted his presence at the scene and an intent to steal goods that he admitted were not his.

Decided April 15, 1987.

William C. Puckett, Jr., for appellant.

Robert E. Wilson, District Attorney, Barbara B. Conroy, Gregory A. Futch, Assistant District Attorneys, for appellee.

Based upon this testimony, Anglin requested charges upon “lesser included” offenses of theft by taking and attempted theft by taking. In effect, however, Anglin’s counsel argued that Anglin did not participate in the burglary nor possess tools for that purpose but if guilty of any crimes, they were ones different and less serious than the burglary as charged. The trial court apparently considered Anglin’s explanation as incredible or as not being raised by the evidence or as not being properly lesser included offenses. We cannot determine the express reason adopted by the trial court for its refusal to charge on the lesser degrees of the offense to the offense charged. In its brief before this court, the State simply argues that inasmuch as the greater offense was proved, it is never error to charge upon a lesser degree of the proved crime. See Hambrick v. State, 174 Ga. App. 444, 447 (2) (330 SE2d 383).

It is clear to us that Anglin by his sworn testimony raised an issuable defense to the burglary charge and the possession of the burglary tools. Booker v. State, 247 Ga. 74 (274 SE2d 334). While we, like the trial court or jury, might find such evidence incredible, issues of credibility are for the factfinder, the jury, not for the court as a matter of law. The failure to give the requested charges which in reality formed the basis of Anglin’s sole defense, effectively removed this issue from the jury’s determination. “An instruction which, while stating the nature of the charge or of the evidence against the accused, omits to charge the jury as to the defense set up by him is error, unless the defense upon which the accused relies is properly submitted to the jury in other parts of the charge. . . . Where there is only one defense on which a party relies, failure to instruct the jury as to the evidence supporting this defense, so specifically that the jury will ... do so intelligently, under pertinent rules of law and evidence, practically withdraws that defense, and to that extent prejudices the defendant’s right to a fair and impartial trial.” Cox v. State, 137 Ga. App. 794, 795 (3) (224 SE2d 845), citing Thompson v. State, 16 Ga. App. 832, 833 (84 SE 591). Accordingly, Anglin is entitled to a new trial. Bryan v. State, 157 Ga. App. 635, 636 (3) (278 SE2d 177).

Judgment reversed.

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


text:
    74047.
    WHIDBY et al. v. COLUMBINE CARRIER, INC. et al.
    (356 SE2d 709)
   Birdsong, Chief Judge.

Plaintiffs Virginia and Glen Whidby brought this wrongful death action on behalf of their daughter, Janet Whidby, against Marion A. Williams, the driver of a tractor trailer truck, the owner of the truck, Columbine Carrier, Inc., and its insurer The Insurance Company of the State of Pennsylvania. The defendant, Williams, was traveling east on Highway 96 in Houston County at about 11:00 p.m. on April 8, 1983 when he struck Janet Whidby’s vehicle at the intersection of Highway 96 and Moody Road. A stop sign and blinking red light faced Moody Road where she attempted to enter the intersection northbound. There was no stop sign on Highway 96, nor any stop light, but there was a caution light, and there was a bend or curve of the road on Highway 96 as it approached Moody Road. It had been raining, or was raining at the time of the collision. The plaintiffs contended and sought to prove defendant Williams was speeding and driving too fast for conditions. The jury returned a verdict for defendants and the plaintiffs appeal. Held:

1. The plaintiffs attempted to introduce evidence concerning Williams’ driving record, which they contended would prove Columbine Carrier, Inc. was liable as respondeat superior and also for negligently hiring and retaining Williams. This evidence included certified copies of speeding citations, a letter written by Columbine Carrier two months before the collision tending to confirm Columbine knew about Williams’ driving record and his license suspension and knew that he falsified his application for employment. Plaintiffs also sought to show Columbine failed to obtain information from Williams’ previous employers as required by Section 392.23 of the Federal Motor Safety Regulations. As to all of this, the trial court granted defendant’s motion in limine.

The plaintiffs contend the evidence was pertinent to the negligent entrustment or employment claim and that the jury would have arrived at a different verdict if it had been given the benefit of the evidence. No doubt this might be so but, if so, it would have proved its own error. Defendant Columbine Carrier admitted liability as respondeat superior for any causative negligence of defendant driver, Williams. The jury returned a verdict for Williams, which means it found Williams not at fault by a preponderance of the evidence. His negligence or lack of negligence on this occasion could be proved only by the facts of the event, and not by evidence of his prior driving record or of his general character for carelessness or recklessness in driving. Willis v. Hill, 116 Ga. App. 848, 862 (159 SE2d 145); rev’d on other grounds, 224 Ga. 263 (161 SE2d 281), reaff’d 117 Ga. App. 855 (162 SE2d 299). Evidence of defendants’ similar acts or omissions on other and different occasions is not admissible. Thompson v. Moore, 174 Ga. App. 331 (329 SE2d 914, aff’d but rev’d on other grounds, Moore v. Thompson, 255 Ga. 236 (336 SE2d 749); Wright v. Dilbeck, 122 Ga. App. 214 (4) (176 SE2d 715); OCGA § 24-2-2. It is not probative of the issue at hand and there is a substantial likelihood that the defendant’s criminal record of prior or subsequent offenses may prejudice the jury against him as to the question of liability in the particular case. Thompson v. Moore, supra; Willis v. Hill, supra at 864. Once liability for the act has been found to exist, evidence of similar acts or occurrences, or a bad driving record indicating wilfulness or reckless disregard of consequences, may become relevant to punitive damages in a bifurcated proceeding. Moore v. Thompson, supra; Chupp v. Henderson, 134 Ga. App. 808, 811 (216 SE2d 366). But this is a wrongful death action (OCGA § 51-4-5) and the plaintiffs did not seek punitive damages (see Truelove v. Wilson, 159 Ga. App. 906 (2) (285 SE2d 556)); and so the evidence lost any relevance once Columbine admitted liability as respondeat superior. Thomason v. Harper, 162 Ga. App. 441, 442 (289 SE2d 773). The trial court did not err in excluding evidence of Williams’ driving record or Columbine’s failure to ascertain it, or its actual or constructive knowledge of it or of the fact he had falsified it in his employment application.

2. The plaintiffs/appellants, however, contend the evidence of Williams’ driving record and falsification of the same in his application for employment was admissible to impeach Williams’ testimony, elicited on cross-examination, that he considered himself a safe driver generally and that he was driving safely on the night in question. Appellants give no argument or citation of authority to this court in support of this enumeration of error; therefore, it is considered abandoned. Brown v. Phillips, 178 Ga. App. 316 (2) (342 SE2d 786); Wilkie v. State, 153 Ga. App. 609 (1) (266 SE2d 289). We note, however, that Williams’ statement that he considered himself a safe driver generally has no relevance to whether he drove negligently and caused the collision on the night in question; and conversely his statement that he was driving safely on the night in question is not proven to be false (impeached) by any evidence that he had driven unsafely on other occasions.

3. The trial court did not err in refusing to admit certified copies of defendant Williams’ criminal record for theft by taking and for theft by receiving stolen property, first offender status. This evidence, in a civil case, when the defendant has not put his character in issue, would tend to be more prejudicial than probative, and the trial court did not err in excluding it.

Evidence of criminal record has been ruled admissible against a defense witness in a criminal case. Warren v. State, 179 Ga. App. 890 (348 SE2d 88). In Hightower v. Gen. Motors Corp., 175 Ga. App. 112 (332 SE2d 336), we held a first offender guilty plea is admissible to impeach a person in a civil suit which he had instigated. On certiorari, the Supreme Court noted a distinction between the use of such evidence in a civil case and its use in a criminal case, and deliberately refrained even from approving or disapproving Moon v. State, 154 Ga. App. 312 (1) (268 SE2d 366) where it was held admissible to impeach a defense witness in a criminal case. The Supreme Court expressly declined to reach the question whether “a witness” may be impeached by proof of a conviction for a felony or a crime involving moral turpitude, a proposition based on Giles v. Jones, 169 Ga. App. 882 (315 SE2d 440) (impeachment of plaintiff in civil case) and Favors v. State, 234 Ga. 80 (3) (214 SE2d 645) (use of first offender plea to impeach a State’s witness in a criminal trial). The Supreme Court carefully limited its holding as follows: “[W]e hold that a guilty plea as to which a plaintiff in a civil case has been granted first offender treatment is admissible in evidence to disprove and contradict such party’s testimony given in the civil case.” (Emphasis supplied.) Hightower v. Gen. Motors Corp., 255 Ga. 349, 352 (338 SE2d 426). We think it is significant that in Hightower the evidence was admitted to disprove specific facts testified to by the plaintiff in that civil case which he instigated. Id. p. 351.

In Giles v. Jones, supra, we held as a general principle applying to the admissibility of a criminal record for impeachment: “ ‘Ordinarily, the issue as to the relevancy and materiality of evidence is for the trial court. Indeed, any evidence is relevant which logically tends to prove or to disprove a material fact which is at issue in the case, and every act or circumstance serving to elucidate or to throw light upon a material issue ... is relevant.’ [Cit.] ‘When facts are such that the jury, if permitted to hear them, may or may not make an inference pertinent to the issue, according to the view they may take of them, in connection with the other facts in evidence, they are such that the jury ought to . . . hear them.’ [Cit.]” (Emphasis supplied.)

The defendant’s criminal record did not tend to “disprove and contradict [the defendant’s] testimony” in this civil case as to a specific material fact testified to by defendant. Hightower, 255 Ga. at 351-352, Giles, supra. It tended at best only to impeach the character and credibility of the defendant generally, in this civil suit instigated by another; the fact that defendant had committed theft in the past had no logical bearing on the specific issue of negligence in driving the truck. The trial court did not err in excluding this evidence. See Metropolitan Property &c. Ins. Co. v. Shepherd, 166 Ga. App. 300, 301 (304 SE2d 74).

4. Appellants’ enumerations of error 10, 12 and 13 have been considered. They are without any citation of authority for the position of appellants that they were entitled to certain jury charges. We conclude these enumerations either are without merit or, if any of the charges should have been given, we are confident the appellants on new trial will support their entitlement to them by citation of authority and that any errors will not recur.

5. In enumerations 9 and 11, appellants contend the trial court erred in failing to include jury instructions about state and federal rules and regulations as to a motor carrier operation, in its charge on negligence per se — driving while ill or fatigued. Appellants did not enter into evidence any such rules and regulations and neither the trial court nor this court is obliged to take notice of them unless they are adopted pursuant to Georgia statutory authority. See Dix v. State, 156 Ga. App. 868 (275 SE2d 807). Appellants do not cite to this court any state motor carrier rules which have adopted any federal motor carrier rules. These enumerations are without merit.

6. In their sixth enumeration, appellants contend it was error to exclude the investigating officer’s opinion concerning Williams’ speed at the time of the collision. Appellants contend the officer would have testified that in his opinion, Williams’ truck was traveling 75-80 mph.

Officer Pagura testified he answered the police bulletin and arrived at the scene at 11:17 p.m., shortly after the collision occurred. He testified the rain had “been coming down” before he arrived but had slowed to a sprinkle when he got to the scene, and 30 minutes later it began coming down hard again. When he arrived, he saw the tractor trailer truck jackknifed where it had come to rest next to Miss Whidby’s vehicle on an embankment northeast of the intersection. Evidence showed the truck hit Miss Whidby’s Fiat broadside on the left driver’s side and both vehicles then “swirled over” or were propelled some distance from the point of impact onto a red clay embankment. The officer testified he measured the distance between the Fiat’s point of rest and the tire rim gouge marks at point of impact; this was 147 feet, 3 inches. He estimated the distance the truck traveled from point of impact at 155 feet. He observed that the Fiat had sustained severe damage to its left side where it was struck; the truck sustained major front-end damage. (An accident reconstructionist testified the truck apparently braked approximately 100 feet before hitting the Fiat, then traveled 140 feet after impact and traveled 20 feet further into or along the clay embankment. This witness also testified that judging from the amount of destruction depicted in photographs in evidence, it “literally would appear the [Fiat] exploded,” that the truck had jackknifed and was almost facing rearward where it came to rest, indicating a complete loss of control of the truck. The accident reconstructionist based his testimony that the truck driver had braked the vehicle 100 feet before impact, upon another witness’ testimony that he heard the different sound of brakes being applied on the truck, coupled with the reconstructionist’s own calculations as to the length of the truck and length of time necessary to activate the brake mechanism after it was applied. He based his conclusion that the truck had hit the embankment with great force, in part upon evidence of residents of the nearby house that they heard or felt an “earth-shaking” explosion.)

The investigating officer, Pagura, testified he had investigated probably several hundred accidents in a 9- V2 -year period, and had investigated 12 or 15 wrecks involving a tractor trailer and a car. He had attended an advanced course in accident investigation at the Georgia Police Academy. He testified that speed of the vehicles can be estimated and “[backed] up 100% if there are skidmarks,” but if there are no skidmarks, speed can be estimated from the damage done to the vehicles and the distance they travel after impact. He had been trained in this method of investigation and had occasions to observe damage and distance in other instances. The next day after the collision he returned to the scene and found no skidmarks. When he attempted to give his opinion as to the speed of the truck, objection was made and the trial court held the officer had laid no proper foundation for an opinion because he could not relate speed to distance from impact. Pagura explained that if a vehicle going 15 mph bumps another, there will be minimal damage, but if one is going 50 mph, there will be more damage, so he knew the truck was running faster than 55 mph. Objection was made again; the officer stated he based his opinion upon the defendant’s statement to him that he was in a hurry to get home, and upon the degree of damage done and distance from point of impact to point of rest. The trial court sustained another objection, on the basis that the witness had not shown how his findings relate to some measure of speed but simply stated damage to the embankment and to the vehicles.

The officer was asked to state how he applied his formulae learned in training; he said: “there’s no way that you could put your tables together on that accident... as far as computing a speed from drag factor [coefficients of friction]. ... It was just a simple hydroplane. . . .You have your road and ... a little sheet of water . . . and it’s like stopping on a frying pan . . . with a pair of roller skates . . . there’s nothing except your physical evidence. . . . Usually [people] say well I was going just 55 or 60 and ... for the thing that happened that night and telling me he was kind of in a hurry to get home and he’s running 55 or 60 in the pouring rain ... I just feel like the vehicle was traveling faster than that.” Again the court sustained an objection to Pagura’s giving an opinion as to speed. The officer repeated his formulations of the jackknifing of the truck, the damage done to the vehicles and to the red clay embankment and the distance traveled after impact. Again the court refused an opinion because the officer had “still not made that causal link that we’re looking for as far as him being qualified as an expert ... he had yet to show how [what he found at the scene] related to the particular miles per hour . . . which I think is required of an expert. ...” All of this was in the presence of the jury. The witness offered to give his opinion as a layman, but the trial court ruled that he could not even give his opinion as a layman because “he did not see the accident... he has not given any testimony of how what he found related to speed.”

The jury retired. The court then explained that the witness had testified he could calculate speed by skidmarks but “[he has not] testified to another formula by which he can apply the criteria . . . something where he can say well, the car was bent 4 inches, 6 inches, 8 inches, and based on previous experience or formulas [sic] this related to X miles per hour. . . . He’s yet to tell me how he can calculate speed . . . [B]ased on skidmarks he can determine the speed . . . but . . . there are no skidmarks in this case.” Plaintiff’s attorney interjected that the witness testified he “learned how to estimate speed on physical damage to the vehicles and how far they traveled after,” but the court said “he has not told us how he could do it.” To reply to this, the witness said: “[I]f you have a vehicle that looks like it’s been involved in an explosion and you see a vehicle that’s been hit going 20 miles an hour bent up a little bit . . . versus one that looks like its been through a meat grinder that’s a great indication [to me and anyone] who’s ever investigated any number of accidents. . . . It’s as simple as that.” He added: “[T]he damage this truck sustained and the damage to the automobile — when you see a car after an accident in that kind of shape, that’s a devastating impact and you don’t see a devastating impact going at 25, 30 miles an hour. [And you do not see that devastation at 55 mph.]”

Still outside the jury’s presence, the witness was allowed to proffer his opinion that the truck was going 75-80 mph, that in his opinion the truck driver “was coming on around the bend ... at a high rate of speed, saw Miss Whidby pull out of Moody Road onto Highway 96, applied those brakes and went into a hydroplane and there he’s on a collision course with Miss Whidby and her vehicle. When they hit they traveled 147, or 155 feet down and [hit] a clay bank and both of them came to rest. ... I see the severe damage done to the truck after impact with the car. . . . I’ve never seen a wreck like that at 55 miles per hour whether it be an 18 wheeler or a small sports car.” The court again querried how the witness decided the truck’s speed was 75-80 mph. The witness explained that at 55 mph, if a driver brakes and has contact with another car, his vehicle will not “travel that far after impact. . . the damage to the car was devastating and damage to the big bumper . . . and all that heavy metal part of the 18 wheeler. I’ve just never seen one that messed up unless its overturned or . . . burned up or something, but as far as damage an automobile that big with that much damage, it was just some momentum there.”

As to the court’s insistence he could not give an opinion, the witness said: “[I]f every accident could be your classic wreck on a beautiful sunny day on nice dry pavement we could get your skidmarks . . . but in a . . . hydroplane, once you hit the brake you just skim along at whatever speed you were traveling. You do not slow down when you hydroplane . . . you’re on just a collision course. ...” The court insisted: “But you don’t have to speed to hydroplane, do you?” And the witness replied: “That’s what I say, if you slow down in the rain, the pouring down rain ... to 35, 40 miles an hour [then] upon impact you’re not going to travel 155 feet after impact.” The witness reiterated that he based his finding upon years of experience and comparisons in seeing damage done to vehicles. The court ruled he was not qualified as an expert or a layman to give an opinion. Ultimately the court stated: “Based on what I’ve heard the [expert] say ... he could not calculate the speed and based on that from what I gather it would simply be a guess as to what speed, any speed he would give in his testimony and that’s the reason I’m not allowing him to testify because . . . it’s just simply a guess and that’s not an opinion the way I see it.”

The trial court erred in excluding the officer’s opinion as to speed of the truck. As the defendants contend, it is “well established that whether a witness has such learning and experience in a particular art, science, or profession as to entitle him to be designated as an expert, or to be deemed prima facie an expert, is a matter addressed to the sound discretion of the trial court, and such discretion will not be disturbed unless it is manifestly abused.” Carroll v. Hayes, 98 Ga. App. 450, 452 (105 SE2d 755). However, in Massee v. State Farm &c. Ins. Co., 128 Ga. App. 439, 443 (197 SE2d 459), we held there can be no doubt a police officer with investigative experience on automobile collisions is an expert. What the trial court ultimately ruled was that because the witness had said there was no way to mathematically calculate speed unless there were skidmarks, and there were none, he could not “calculate” speed at all. The officer’s opinion, based on training and experience in judging the degree of damage done to the vehicles and the distance they traveled after impact, was not a “mathematical calculation,” but the law of evidence does not require an opinion as to speed to be a mathematical calculation to be admissible. What the trial court ruled was that the opinion was “simply a guess” and therefore was not competent to prove speed, but this goes to the worthiness or credibility of the evidence, which is the entire jury question. The function of the trial court in determining the admissibility of evidence is to determine its legality. See Mulkey v. State, 155 Ga. App. 304, 305 (270 SE2d 816). As to that question, “[t]he policy of Georgia ... is to admit evidence, even if its admissibility is doubtful, because it is more dangerous to suppress the truth than to allow a loophole for falsehood.” Gibbons v. Md. Cas. Co., 114 Ga. App. 788, 796 (152 SE2d 815). If evidence is relevant, has probative value, and is not inadmissible for some reason of prejudice or illegality, it should be admitted. “It has long been the rule in this State that where the relevancy or competency of evidence is doubtful, it should be admitted and its weight left to the determination of the jury.” Lovejoy v. Tidwell, 212 Ga. 750, 751 (95 SE2d 784); Carroll, supra. We have stated: “ Tn respect to the opinion testimony as to speeds, time, and distance, it has been held many times that same is very unreliable, but nevertheless, admissible.’ ” Harris v. Collins, 145 Ga. App. 827, 828 (245 SE2d 13). As to such testimony being “very unreliable,” we think that is the entire jury question.

It has been held that even a lay witness (Horton v. State, 119 Ga. App. 43 (3) (166 SE2d 47)), or a teenage child could give an estimate of speed if he gives the facts and basis of his opinion. Gibbs v. Gianaris, 137 Ga. App. 18, 19 (223 SE2d 4). In Gibbs, the witness whose opinion was allowed was 14 years old, had never driven an automobile and had seen the plaintiff’s vehicle “just for a brief second,” and conceded his estimate of speed was a “guess.” Another witness whose opinion was allowed was 15, had ridden in and driven cars, and only saw the plaintiff’s vehicle “between a split second and a second.” Many cases cited in Gibbs approve the admission of opinions of lay persons based on little more than a guess, and one case held that even where one “refuses to swear positively that his estimate of the speed is absolutely accurate, where it appears that he believes it to be substantially correct, the credit to be given such testimony [is] for the jury.” Id.; Ellison v. Evans, 85 Ga. App. 292 (69 SE2d 94).

A lay person has been permitted to offer an opinion as to speed even though it was “a mere guess,” based upon “(the) way the defendant’s automobile ‘dragged’ the witness’s ‘car around’ ” when they collided. It was held such a guess had probative value. Rentz v. Collins, 51 Ga. App. 782 (4) (181 SE 678). It has been held that an experienced auto-wrecker driver is qualified “to state facts and give his opinion [from these facts] as to the point of impact and between what objects.” Royal Crown Bottling Co. v. Stiles, 82 Ga. App. 254, 265 (60 SE2d 815). With such opinions being held to have probative value, it is difficult to see how an experienced police officer who has investigated collisions for 9-½ years, can be said to be not qualified as an expert, or that his opinion based on the physical evidence found at the scene has not any probative value as a lay opinion. In Bell v. Brewton, 139 Ga. App. 463, 464-465 (228 SE2d 600), we said: “Even assuming that [the officer’s] testimony reconstructing the accident and that the position of the vehicles was opinion evidence, or that his qualifications were weak, this ‘could affect the credibility of his testimony but not its admissibility.’ [Cits.]”

Police officers who are experienced in investigating collisions may give an opinion as to speed based on physical evidence as to how far the vehicles traveled after impact and the damage incurred after impact, even though the officers did not see the collision, may not have shown that they had learning and experience to qualify themselves as experts, and even where one stated he did not consider himself an expert. Thornton v. Gaillard, 111 Ga. App. 371 (141 SE2d 771). Law enforcement officers who did not see a collision have been allowed to give their opinions as to speed, grounded as a proper foundation on their experience, and based upon the fact that the plaintiff’s car had been knocked back a certain distance. Passley v. State, 62 Ga. App. 88, 95 (8 SE2d 131). Moreover, in that case, we said: “It is said that an observer’s estimate of the speed of an automobile is not much more than a guess, and therefore the results of a collision may furnish better evidence as to whether or not a car was going too fast. [Cit.] ‘Police officers . . . are not always present at or immediately prior to a collision; . . . and they are nevertheless competent to express opinions on that subject; and though their estimates may be conjectural, they are admissible, the weight and value of their testimony being for the jury to determine.’ [Cit.] ‘The evidence complained of was admissible, the weight and value of the testimony of the troopers being for the jury.’ ” (Emphasis supplied.)

In Firestone Tire &c. Co. v. King, 145 Ga. App. 840, 846 (6) (244 SE2d 905), we held: “ ‘A qualified witness may give opinion evidence as to speed based on data observed immediately after a collision, such as skid marks, distances, and the positions of and damage to the vehicles. If it be developed by further examination that the opinion is based on inadequate knowledge, this goes to the credibility of the witness rather than to the admissibility of the evidence.’ [Cits.]”

This officer’s opinion as to speed was admissible whether he be considered a lay person or an expert.

We have no doubt the exclusion of it was harmful and prejudicial. The jury heard the officer’s opinion that the truck was running faster than 55 mph, but this evidence was too vague and inconclusive on the question of negligence to amount to any proof; and when the defendant’s objection to this was sustained, the jury heard the trial court’s ruling that the witness had not laid a proper foundation and had given no evidence upon which to relate such an opinion. The jury repeatedly heard the trial court’s statements which under these circumstances amounted to a comment on credibility, that without any evidence of skidmarks in the case the officer was not qualified to state an opinion either as an expert or a layman, and had shown no “causal link” or mathematical basis to estimate speed based on damage to the vehicles and distance traveled after impact; and indeed if the jury had any doubt left that this witness’ testimony was not credible without evidence of skidmarks, it must have been erased during cross-examination when the same attack was made on the officer’s ability to give even any opinion even as to the truck’s going faster than 55 mph. The witness was finally allowed to say the collision in his opinion was a “high speed impact,” but this was not even a suggestion of negligence, for as the defense counsel himself said: “I don’t know what [high speed impact] means ... 40 mph could be a high speed impact.” Moreover, the jury did not hear at all the officer’s full explanations as to his reasoning and basis for concluding that the devastation he observed and the distance the vehicles traveled after impact, in his experience could not have occurred if the truck was going 55 mph and that he had never observed such devastation in a collision at 55 mph; nor did they hear his explanation that while a vehicle does not have to speed to hydroplane, if it hydroplanes while it is traveling at a lower speed in pouring-down rain it will not travel 155 feet after impact. The jury did not hear the witness’ significant statement that he based his opinion as well upon the severe damage the truck sustained after the impact when it hit the embankment, which coupled with his testimony as to momentum (which they likewise did not hear), might have had considerable effect upon their weighing of the evidence.

The investigating officer’s opinion as to speed was not merely a cumulation of the testimony later offered by an accident reconstructionist, for the excluded testimony was by the investigating officer who was an eyewitness to the scene, whereas it was proven, under critical scrutiny, that the reconstructionist was a professional consultant who was not present at the collision scene, that he never viewed the vehicles except in photographs and in some of these, the vehicles were removed from the scene and “cleaned up,” and that he had not viewed the embankment except in isolated photos and never saw the intersection until after the roadway had been rearranged almost beyond recognition.

It was the reconstructionist’s opinion that “where Miss Whidby initially started up [to the intersection] . . . due to the high rate of speed of this truck [Miss Whidby] wouldn’t even have seen the truck and that by the time that she got to the impact area the truck had been coming in here and at this point is doing 100 feet per second and that she is simply caught in a trap with no place to go.” But the basis of this opinion was similar to the basis used by the investigating officer in formulating his own refused opinion, and the jury might well have concluded the reconstructionist’s opinion was infected by the same absence of skidmarks that, as they had heard, rendered the officer’s opinion an incompetent guess. Moreover, the reconstructionist’s opinion was delivered in the arcane, by a plaintiff’s consultant who first saw the rebuilt intersection two years after the event; and it cannot be said to have so adequately replaced the testimony of the officer who investigated the wreck when it occurred, that it rendered harmless the error of excluding that officer’s first-hand opinion. The opinion of the investigating officer could be construed by a jury as adding credibility to the opinion of the reconstructionist.

This is not a case where the error becomes harmless when the same party later states the same evidence or to the same effect. See Transamerica Ins. Co. v. Smith, 147 Ga. App. 574, 577 (249 SE2d 663); Seal v. Aldredge, 100 Ga. App. 458, 460 (111 SE2d 769).

The vital question in this case was whether Williams was negligent, and the defendant’s speed as he approached the intersection could contribute to the answer to that question. The investigating officer offered his opinion as to that speed, based on his experience and his view of the intersection and road as it existed on the night of the collision of the damaged vehicles and the distance from point of impact, and the current weather conditions. The refusal to allow the jury to consider the opinion of the only expert investigating eyewitness to the scene, could have eviscerated the plaintiff’s case in that it threw them back upon the complicated testimony of an expert who could testify only as he reconstructed evidence several years old. See Harris v. Collins, supra. Indeed, when this expert’s testimony was evidently successfully attacked on this basis on cross-examination, the plaintiffs were left with no specific evidence at all as to the vital question in the case. It has been said that when other evidence in a case does not demand the verdict rendered, an error of this magnitude requires reversal. Thigpen v. Batts, 199 Ga. 161 (2) (33 SE2d 424). In this case, not only does the other evidence not demand a defendants’ verdict, but if the investigating officer’s testimony as to speed had not been erroneously excluded, and the general incredibility of his testimony commented upon by the trial court, the jury might have concluded this evidence, and the reconstructionist’s testimony which it would have bolstered, may have caused a different result.

Furthermore, the error was compounded when the defense on cross-examination read to the jury half a sentence of the officer’s inquest testimony showing that on his accident report he wrote down the defendant’s speed as 55 mph based on what the defendant had told him at the scene. The plaintiffs, concerned by this attempt to impeach the officer by proof of inconsistent testimony, attempted to read the entire sentence to the jury to explain why the officer wrote down 55 mph on the accident report (which evidently was because he would have been “foolish” to put on a police report and issue a criminal citation for what he could not prove beyond a reasonable doubt) and particularly to show that he had not made inconsistent statements; but the plaintiffs were not allowed to remove this characterization of the officer’s testimony because “he can’t get back into his opinion [as to speed] from this situation.”

Decided April 15, 1987.

Lester Z. Bozier, Jr., for appellants.

John C. Edwards, for appellees.

This judgment is reversed for the reasons given in Division 6; accordingly we find it unnecessary to address appellant’s enumerations based upon the general grounds.

Judgment reversed.

Been P. J., and Pope, J., concur.


text:
    73861.
    GALLMAN v. CORONET INDUSTRIES, INC.
    (356 SE2d 654)
   Carley, Judge.

Appellant’s husband suffered a heart attack while working for appellee-employer. He was taken to a hospital and died that evening. Appellant sought workers’ compensation benefits from appellee. The Administrative Law Judge (ALJ) denied the claim. The Full Board affirmed, adopting the ALJ’s findings of facts and conclusions of law as its own. The superior court affirmed the award of the Full Board. Appellant now appeals to this court pursuant to our grant of her application to file a discretionary appeal.

Appellant contends that the superior court erred in affirming the denial of compensation because, upon application of the “natural inference” rule to the facts of this case, a finding of compensability would be demanded. The “natural inference” rule, as applicable in cases of heart attacks is, as follows: “Where evidence as to the work engaged in [by the employee] shows it to [have been] sufficiently strenuous, or of such a nature that, combined with the other facts of the case, it raises a natural inference through human experience that [the exertion] did . . . contribute [toward the precipitation of the heart attack], this is sufficient” to authorize a finding of a compensable injury and, thus, to support an award in the claimant’s favor. Hoffman v. Nat. Surety Corp., 91 Ga. App. 414, 417 (85 SE2d 784) (1955). See also Guye v. Home Indem. Co., 241 Ga. 213 (244 SE2d 864) (1978); Southwire Co. v. Cato, 250 Ga. 895 (302 SE2d 91) (1983); Brown Transport Corp. v. Jenkins, 129 Ga. App. 457 (199 SE2d 910) (1973). Even assuming that there was sufficient evidence of exertion to warrant application of the “natural inference” rule in this case and that an award in favor of appellant would have been authorized, such an award was nevertheless not demanded by the evidence. The record contains competent, credible evidence that the deceased’s heart attack was not related to his employment. Specifically, the cardiologist who treated appellant’s husband following his heart attack testified that it was his opinion that the heart attack was not job-related. The award of the Full Board denying compensation is supported by the physician’s opinion. Neither the superior court nor this court is authorized to reweigh the evidence. See generally Georgia State Indem. Comm. v. Lyons, 256 Ga. 311 (348 SE2d 642) (1986). “The question of preponderance of the evidence is a matter resting with the trier of facts and where the trier finds either way, it will not be set aside on appeal if there is any evidence to support the finding. [Cits.]” Guye v. Home Indem. Co., supra at 218. The award of the Full Board being supported by sufficient evidence, the superior court was correct in affirming it.

Decided April 6, 1987

Rehearing denied April 16, 1987

Newton D. St. John, Jr., for appellant.

James T. Fordham, for appellee.

Judgment affirmed.

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


text:
    73940.
    PATTERSON v. FLINT et al.
    (356 SE2d 670)
   Birdsong, Chief Judge.

Legal Malpractice — Summary Judgment. In 1972 Patterson, together with others, incorporated Southway Theaters, Inc. Among other activities, Southway rented movies for display to audiences. Southway was an independent movie operator and experienced difficulty obtaining first run movies for display in its theaters. Patterson as chief executive officer became aware of the probability that movie producers and leasers were deliberately favoring their own franchised movie exhibitors and seeking to force independent operators out of business. Patterson, on behalf of Southway, retained the law firm of Schreeder, Wheeler and Flint to pursue a complaint in the federal district court in Atlanta. The retention agreement was that the firm would be paid $25 per hour plus 30% of any recovery and expenses. Over the next ten years, the firm pursued the first filed lawsuit, plus a second suit to preserve damages which occurred after the first suit. Over the period of the pretrial litigation, the law firm billed Southway for expenses of over $85,000. Patterson paid the firm more than $60,000 for the interim expenses. In an effort to arrange for payment of the remaining $25,000, the firm sought to modify the fee arrangements. The firm attempted to change the contingency agreement to a 50% contingency and waive any further hourly fees; to obtain a security deed on the theater property; or to impose an interest charge on the unpaid balance. None of the fee arrangements proved acceptable or could be satisfactorily arranged.

On March 26,1984, the firm moved the district court to allow the firm to withdraw further representation of Southway for failure to pay attorney fees. When Patterson objected to the firm’s withdrawal, the district court allowed Patterson approximately six months in which to retain substitute counsel. Finally on September 27,1984, the district court granted the firm’s motion to withdraw. Southway was still unable to locate counsel, and in April 1985, the firm was allowed to withdraw in the second case. On March 22, 1985, the district court dismissed the first action for want of prosecution. Subsequently, the second suit was dismissed for the same reason.

In May 1985, Patterson lodged a complaint with the State Bar of Georgia against the firm and its members. When prompt action was not taken, Patterson filed suit in the federal court against the judges, the attorneys, attorneys who declined to enter into a representative capacity in the four cases brought by Patterson, the State of Georgia, and the State Bar of Georgia. The federal court dismissed that complaint as being frivolous. Patterson then filed pro se (in addition to similar actions) the present complaint against the firm of Schreeder, Wheeler and Flint ás well as against Wheeler and Flint individually. In his complaint Patterson contended the firm and the individual attorneys acted in a professionally derelict and improper manner amounting to legal malpractice. He also complained the attorneys had breached their contract of representation. Patterson had spent thousands of -hours (he asserted) in assistance and preparation of legal documents; thus he claimed $200,000 in equitable relief for services performed.

After extensive discovery, the attorneys filed for summary judgment. The trial court granted summary judgment to the firm and individual attorneys. The court concluded that in essence the entire suit was based on contentions of legal malpractice. The defendant attorneys (Wheeler and Flint) affirmed they had exercised professional conduct comporting with that ordinarily exercised by members of the legal profession generally as well as that exercised by members of the Georgia Bar. Patterson, even after the passage of more than 90 days was unable to obtain an attorney willing to undertake representation; thus Patterson answered the motion for summary judgment pro se. The trial court based its grant of summary judgment to the attorneys upon the failure of Patterson to offer expert legal opinion as to the alleged legal malpractice. Patterson filed this appeal enumerating 11 asserted errors. Held:

In substance Patterson argues that he (Patterson) pointed out in his brief many arguable shortcomings in the representation by the two attorneys. Thus Patterson contends the trial court should have evaluated the allegations of legal malpractice in terms of the specific assertions of failure to act or because of improper actions. He argues that if the individual acts of asserted malpractice are considered, the alleged malpractice is blatant, i.e., clear and palpable, and thus does not require expert evidence to establish malpractice. In the same light he urges the trial court erred in accepting the generalized assertions by the attorneys (Wheeler and Flint) that they performed their duties of representation in a legally professional manner and within the accepted standards of legal representation. Patterson contends the contentions of competency should have met the individual allegations of malpractice and that the generalized statements of competency of representation went to the ultimate issue and invaded the province of a jury. Patterson also argued that the evidence before the trial court showed that he (Patterson) should have been accepted as an “expert” because Patterson established he had spent “1,000’s” of hours assisting the attorneys.

In its order granting summary judgment to the attorneys, the trial court made certain non-essential observations. The court observed that because Patterson sought to control the conduct of the trial proceedings, it was Patterson who was seeking to practice law and even considering the terms of the contract as binding, the court believed the contract was against public policy. Patterson made much of a divergency of opinion as to whether the contract of representation provided for “a satisfactory and successful” resolution of the lawsuit rather than a “just” resolution. Patterson also contended that by withdrawing before there had been a just resolution of the litigation, Wheeler and Flint breached ethical rules by not providing him with substitute counsel to continue the litigation. Patterson also argues in this appeal the trial court ignored the provisions of the complaint that sought damages for the equitable and contractual violations. Lastly Patterson argues that the trial court erred in concluding that Patterson lacked standing because the dispute was between Southway and the attorneys and that there was no justification for the court’s conclusion that the reason Patterson could not obtain legal representation was the lack of merit to Patterson’s claim.

We have taken opportunity to set forth the errors enumerated by Patterson because of an unusual feature in this case. In his statement of jurisdiction in the Court of Appeals for this case, Patterson acknowledges: “The Supreme Court . . . declined jurisdiction in the case of James Thomas Patterson, Sr. v. Lawrence L. Aiken et al. That case raised most of the same issues that are raised in this case. That case was docketed as Georgia Court of Appeals Case No. 73073, Patterson v. Lanham et al.”

Because in every case coming before this court, we are required to examine the record to make certain we possess jurisdiction (Stephenson v. Futch, 213 Ga. 247, 248 (98 SE2d 374); Venable v. Block, 138 Ga. App. 215, 218 (225 SE2d 755)), we have examined the record and pleadings in the case of Patterson v. Lanham, 182 Ga. App. 343 (355 SE2d 738). At the invitation of Patterson and, within our inherent powers to do so, we take notice of the records of this court while considering the immediate case before us (see Ammons v. Central of Ga. R. Co., 215 Ga. 764 (113 SE2d 443); Baker v. City of Atlanta, 211 Ga. 34 (3) (83 SE2d 682); and L. K. F. v. State of Ga., 173 Ga. App. 770 (1) (328 SE2d 394)), we concur that most of the issues raised in the case sub judice were raised, considered and disposition made thereof in the Lanham case, supra. There this court, in considering the same issues presented in the case sub judice, held that there was no error in failing to grant Patterson more time to obtain the services of an attorney as replacement for Lanham’s firm nor did counsel violate any special duties owed to Patterson. In response to the errors that we have set forth in detail in our opinion herein, this court in Lanham, supra, consolidated these several similar enumerations referring to them as “several convoluted arguments” (our examination thereof reflects they are indeed the same assertions in principle) challenging the propriety of the trial court’s order granting summary judgment in favor of the attorney defendants in that case. Disposition of these “convoluted” errors was effectuated by the ultimate holding. In Lanham, supra, it was held that the affidavits of the attorney defendants involved was a sufficient showing of professional competence. Patterson’s failure to bring forth expert evidence concerning the defendants’ (Wheeler and Flint) want of professional skill and diligence (notwithstanding his inability and indeed because of his failure to provide an affidavit other than his own to refute the affidavits filed by the attorneys) required the grant of summary judgment to the attorneys. The trial court in this case was faced with the same situation. Perforce we are bound by the same rules of law. Independently and in view of the precedential holding in the Lanham case, supra, we find no error in the grant of summary judgment to Flint and Wheeler and their firm.

Though there are some issues raised in this case that were not considered in Lanham, supra, those issues are peripheral to the controlling issue, i.e., that Patterson failed to provide an off-setting affidavit of legal malpractice. These unaddressed issues are rendered moot by the affirmance of the grant of summary judgment and do not require explication in this opinion except to observe that each is without substantial merit.

Decided April 8, 1987

Rehearing denied April 16, 1987

James T. Patterson, Sr., pro se.

James T. McDonald, Jr., Mark J. Goodman, for appellees.

Judgment affirmed.

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


text:
    73613.
    FREEMAN v. THE STATE.
    (356 SE2d 718)
   McMurray, Presiding Judge.

Defendant appeals his conviction of two counts of violation of the Georgia Controlled Substances Act (possession of cocaine and possession of less than one ounce of marijuana). The sole issue raised by defendant on appeal is the sufficiency of the evidence. Held:

The State’s evidence shows that police received information from a confidential informant, and acting on that information, went to a location in Brunswick seeking defendant. The police expected to find defendant in possession of cocaine and marijuana, and intended to arrest him for that offense. When police found defendant they approached him, “advised him not to run, just stand there,” but defendant “ended up taking off running.” The police pursued defendant and in the course of the chase Officer Jordan observed defendant “pulling something out of his left pocket and [the officer] observed him throw it and when he did, [the officer] observed it being a clear plastic bag containing a leafy material.” Later in the chase Officer Jordan observed defendant “pulling something out of his right, front pocket. When he had it in his hand, [the officer] observed it to appear to be a matchbox, and observed him throw this down on the ground.” After defendant was apprehended Officer Jordan recovered the items discarded by defendant during the chase. The item which had appeared to be a matchbox during the chase was found to be a staple box (a box normally used for containing staples for an office stapler). Any possibility of a mistake in regard to the identity of the items discarded by defendant during the chase was diminished by the fact that it had rained earlier in the day and while the items discarded by defendant were dry the surrounding items on the ground were wet. Inside the staple box were “seven (7) corners of plastic bags secured with wire ties, containing a white powdery substance.” The white powdery substance and the leafy material from the plastic bag were tested by the crime laboratory and determined to be cocaine and less than one ounce of marijuana.

Decided April 16, 1987.

John W. Davis, Donald E. Manning, for appellant.

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

The evidence presented at trial was sufficient to enable any rational trier of fact to find defendant guilty of the offenses charged beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560); Felton v. State, 181 Ga. App. 160, 161 (1) (351 SE2d 488).

Judgment affirmed.

Sognier and Beasley, JJ., concur.


text:
    73872.
    RASH v. THE STATE.
    (356 SE2d 719)
   Benham, Judge.

Appellant was indicted for arson and convicted of criminal damage to property in the second degree. On appeal, he raises the sufficiency of the evidence generally and, specifically, the sufficiency of the evidence that he damaged the “property of another person.” See OCGA § 16-7-23 (a) (2).

The evidence, although conflicting, authorized the jury to find that appellant, intoxicated and angry at his former wife, poured gasoline on the carport of their former marital home, then occupied by his former wife, and lit it in furtherance of his threat to “burn the mother down” if his former wife did not admit him to the house. A divorce decree, entered less than two weeks before the incident, awarded title to and use of the house to appellant’s former wife and ordered him to quitclaim his interest in the house within 30 days of the decree.

Appellant’s argument is that since he had not yet complied with the order that he give his former wife a quitclaim deed, he was still an owner of the house and that, therefore, the house was not the “property of another person.” In rejecting a similar argument in an arson case, this court held, “Lawful occupancy by one in charge constitutes ownership as contemplated by the statute, and the question of legal title is not involved.” Tukes v. State, 125 Ga. App. 831 (189 SE2d 135) (1972). Although the Tukes court was speaking of the arson statute, the pertinent language, “dwelling house of another” in OCGA § 16-7-60 (a) (1), and “property of another person” in § 16-7-23 (a) (2), is sufficiently similar that the statement is equally applicable to this case. See also Corson v. State, 144 Ga. App. 559, 560 (241 SE2d 454) (1978), in which it was held that criminal damage to property is established by proof of the same conduct as first-degree arson except for the difference in proof of mental state.

Decided April 16, 1987.

Christine A. Van Dross, for appellant.

Lewis R. Slaton, District Attorney, Joseph J. Drolet, Richard E. Hicks, Assistant District Attorneys, for appellee.

Since the divorce decree, which is in the record of this case, awarded the wife “use” of the house, her legal occupancy was shown and the contested element of the offense was proved. The evidence at trial was sufficient to authorize any rational trier of fact to find appellant guilty of criminal damage to property in the second degree beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); OCGA § 16-7-23 (a) (2).

Judgment affirmed.

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


author: Banke, Presiding Judge.

text:
    74307.
    SELF v. THE STATE.
    (356 SE2d 722)
   Banke, Presiding Judge.

The appellant was convicted of sodomy based on a deputy sheriff’s testimony that he had observed the offense in progress when he looked inside a parked van at a rest area alongside an interstate highway. The appellant’s sole enumeration of error on appeal is directed to the trial court’s refusal to permit the jury to view the van in question, which was parked outside the courthouse during the trial. He contends that such a view was necessary to enable the jurors to evaluate the credibility of the deputy’s testimony that he had been able to see inside the back of the van by shining a flashlight through the driver’s window. The appellant was, however, allowed to introduce into evidence four photographs showing different views of the van. Held:

Whether to permit a jury inspection of the crime scene is a matter entirely within the discretion of the trial court. See Lackey v. State, 217 Ga. 345, 346 (2) (122 SE2d 115) (1961); Sutton v. State, 237 Ga. 418, 419 (3) (228 SE2d 815) (1976). We hold that no abuse of discretion has been established in the present case, particularly in view of the admission of the photographs.

Judgment affirmed.

Carley and Benham, JJ., concur.

Decided April 16, 1987.

G. Hammond Law III, for appellant.

C. Andrew Fuller, District Attorney, Daniel A. Summer, Assistant District Attorney, for appellee.


author: Deen, Presiding Judge.

text:
    74414.
    HENDERSON v. CAUGHRAN et al.
    (356 SE2d 721)
    Decided April 16, 1987.

      Albert N. Remler, for appellant.
   Deen, Presiding Judge.

In August of 1980, D. L. Henderson executed a promissory note in the amount of $5,000 in favor of Essie Allan Gooding. The note was never called or paid during Gooding’s lifetime, and after her death her executors brought suit on it. Appellees filed a motion for summary judgment, and the court below found that no genuine issue of material fact existed as to the defendant’s liability on the note because he failed to make timely response to the plaintiff’s motion for summary judgment. The court also held that summary judgment was granted as to certain issues which were not valid defenses to the granting of the motion. The court, however, also found that the defendant’s counterclaim raised issues of set-off or fraudulent inducement which were reserved for trial by jury. Held:

Plaintiffs filed their motion for summary judgment together, with a supporting affidavit, on July 19, 1986. The defendant filed a response and rebuttal affidavit on September 5, 1986. There is nothing in the record to indicate if this motion came on for hearing, but the order on the motion is dated October 14, 1986. Rule 6.2 of the Uniform Rules for the State Courts (253 Ga. 887, 1985), requires a party opposing a motion to serve and file a response, reply memorandum, affidavits, or other responsive material not later than 30 days after service of the motion or on the date of the hearing, whichever occurs first. As the defendant did not comply with this rule, we find that the court did not err in refusing to consider his untimely filed response and affidavit and to consider the materials filed by the plaintiffs as a basis for granting summary judgment in their favor. The mere pendency of a counterclaim does not bar the court from granting summary judgment in a suit on a note. Mock v. Canterbury Realty Co., 152 Ga. App. 872, 878 (264 SE2d 489) (1980).

Judgment affirmed.

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

Thomas R. Herndon, for appellees.


text:
    73628.
    FELLERS et al. v. CARSON.
    (356 SE2d 658)
    Decided April 6, 1987
    Rehearing denied April 17, 1987

      A. Montague Miller, for appellants.

      Michael C. Eubanks, for appellee.
   Benham, Judge.

On February 19, 1984, appellee was bitten by a cat owned by appellants. Appellee received the injury, which became seriously infected, while attempting to remove the cat from her yard. This interlocutory appeal is from the denial of summary judgment to appellants in appellee’s suit against them. We reverse.

This case is controlled by the holding in Brown v. Pierce, 176 Ga. App. 787 (338 SE2d 39) (1985). Here, as there, the defendants put into the record positive evidence that they had no knowledge of the animal ever biting anyone before; the plaintiff had no evidence to the contrary. Under that state of the record, appellants here are entitled to summary judgment just as the appellees in Brown were.

Appellee offers several theories to distinguish this case from cases such as Brown, but we find them unavailing. There is no authority for appellee’s assertion that cat bite cases should be treated differently than dog bite cases. Even if we were inclined to adopt appellee’s public policy arguments against a “first bite” rule, we note, as we did in Smith v. Culver, 172 Ga. App. 183 (322 SE2d 294) (1984), that the Supreme Court has also endorsed the doctrine. Harvey v. Buchanan, 121 Ga. 384 (49 SE 281) (1904). We also note, as we did in Brown, that the ruling in this case may have been different if the injury had occurred after July 1, 1985, the effective date of the 1985 amendment to OCGA § 51-2-7. However, given the circumstances of the case, including its timing, appellants were entitled to summary judgment and the trial court erred in denying it.

Judgment reversed.

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


text:
    74278.
    STEWARD v. THE STATE.
    (356 SE2d 890)
   Deen, Presiding Judge.

Harold Steward appeals from his conviction of trafficking in cocaine. The evidence showed that he was stopped for speeding by a Georgia State Patrol trooper who had observed his 1981 Lincoln Mark VI automobile traveling at a steady rate of 68 m.p.h. in a 55 m.p.h. zone for approximately two miles. During the stop, the officer inquired into the validity of Steward’s driver’s license and automobile registration, where the trip originated and his destination. Steward volunteered that he was a migrant worker who worked part-time in Florida and Ohio and that he and his traveling companion were going to Ohio to work. After determining the automobile to be properly registered and the driver’s license to be valid, the officer returned the documents to appellant together with a warning citation for speeding. A copy of this citation was tendered into evidence at the motion to suppress hearing. The trooper, however, felt that a lack of clothing and other items was suspicious in light of Steward’s story about the reason for his trip and asked if he would consent to a search of his car. Appellant orally consented and then signed a consent form presented by the trooper. Steward appeared to read it and did not indicate a lack of understanding of the form or ask any questions concerning it. All of the evidence indicated that appellant freely and voluntarily signed it. Appellant assisted in the search of the vehicle. He showed the officer how an ashtray could be removed without the use of a screwdriver, he opened the trunk, and he attempted to open a metal security box with a key. After he was unable to open it, he handed the box with the key in the lock to the officer who placed it on the hood of the car. The officer opened the box and discovered eight zip-lock plastic bags containing a white powdery substance. A Derringer pistol was found under the bags. The white substance was later tested in the Georgia Crime Laboratory, found to weigh 226 grams and contained 190 grams of pure cocaine. A fingerprint examiner with the crime lab examined the empty plastic bags and developed identifiable latent prints which he compared with appellant’s and they were identified as being made by appellant’s left index finger.

Appellant testified that he did not know that there was cocaine in the car and admitted that he had seen the plastic bags before, but “there was films in it.” He claimed a man named Milton Jones had paid him $200 to deliver a briefcase containing film to Ohio, that he was driving north to find work and that the $800 in cash that he carried was travel money. He admitted that the automobile in question was his, that he assisted the trooper in the search, that even if he had read the consent form he would have had no objection to the search; but that he claimed that he had signed it thinking it was ,a warning citation.

1. The trial court did not err in denying the motion to suppress. There was probable cause for the trooper to stop him for speeding through both the trooper’s testimony and appellant’s admission that he set the cruise control on his automobile at 57 m.p.h. after observing the speed limit to be 55 m.p.h. While there might not have been probable cause for the search, there was evidence of a valid consent to search; appellant signed the consent form, gave no indication that he did not understand the form; he was not given any inducement or threats to sign it, and he admitted that even if he had not read the form, he had no objection to the search. A valid consent to search eliminates an officer’s need for probable cause. Wilson v. State, 179 Ga. App. 780 (347 SE2d 709) (1986).

2. Appellant claims that the court below further erred in failing to suppress statements made by him pursuant to a stop for a traffic violation and made prior to informing him of his Miranda rights. Steward claims that statements made to the arresting officer during the traffic stop regarding the contents of the locked box were used at trial to impeach him. Appellant does not cite to the record where the alleged impeachment occurred and we cannot find it. We do find, however, that he admitted that the statements were voluntarily given. A voluntary statement which fails to comply with the requirements of Miranda is admissible for impeachment purposes. Harris v. New York, 401 U. S. 222 (91 SC 643, 28 LE2d 1) (1971). Roadside questioning at a routine traffic stop does not constitute a custodial situation which triggers the Miranda warnings requirement that occurs when a violator is placed in custody or under arrest. Lebrun v. State, 255 Ga. 406 (339 SE2d 227) (1986). In this case, appellant was not placed under arrest or taken into custody during the traffic stop; he was merely given a warning citation and Miranda warnings were not required.

3. In his final enumeration of error, appellant contends that the trial court erred in refusing to sentence him under OCGA § 16-13-31 (f). Appellant was sentenced under OCGA § 16-13-31 (a) (1), which requires that: “Any person who knowingly sells, manufactures, delivers, or brings into this state or who is knowingly in actual possession of 28 grams or more of cocaine or of any mixture with a purity of 10 percent or more of cocaine, as described in Schedule II, in violation of this article commits the felony offense of trafficking in cocaine and, upon conviction thereof, shall be punished as follows: (A) If the quantity of the cocaine or the mixture involved is 28 grams or more, but less than 200 grams, the person shall be sentenced to a mandatory minimum term of imprisonment of ten years and shall pay a fine of $100,000.” Appellant claims that the court should have sentenced him under subsection (f) which provides: “Any person who violates any provision of this Code section, in regard to trafficking in cocaine, illegal drugs, or marijuana shall be punished by imprisonment for not less than five years nor more than 30 years and a fine not to exceed $500,000.”

Decided April 6, 1987

Rehearing denied April 17, 1987

J. Lane Bearden, for appellant.

Darrell E. Wilson, District Attorney, for appellee.

An examination of all the provisions contained in OCGA § 16-13-31 reveals that it sets forth various drug offenses and then states the range of punishment depending upon the nature of the violation. Subsection (a) (1) (A) is set forth above. Subsection (a) (1) (B) provides that if the quantity of cocaine involved is between 200 and 400 grams, the mandatory sentence is 15 years imprisonment and a $250,000 fine. Subsection (c) provides for a minimum 25 years in prison and a fine of $500,000 when more than 400 grams of cocaine are involved. Under subsection (C), which deals with marijuana trafficking, similar provisions apply depending upon the quantity of the contraband. Subsection (1) provides for a mandatory sentence of 5 years and a fine of $25,000 for 100-2,000 pounds; subsection (2) requires a mandatory term of imprisonment of 7 years and a fine of $50,000 for 2,000 to 10,000 pounds; and subsection (3) requires a maximum prison sentence of 15 years and a fine of $200,000 for more than 10,000 pounds. Other sections of this code section which deal with other controlled substances contain similar provisions requiring mandatory prison sentences and fines depending upon the quantity of the substance involved. We therefore find that in view of the specific sentences required for a specified offense that OCGA § 16-13-31 (f) is a general provision and in large part a superfluity. It merely states the range of punishment for the offenses set forth in the preceding subsections and places a cap of 30 years and a fine of $500,000 for the most serious offense.

Judgment affirmed.

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