text:
    A89A0471, A89A0472.
    KILGORE v. AMRAC, INC.; and vice versa.
    (382 SE2d 123)
   Banke, Presiding Judge.

F. H. Kilgore, Jr., purchased a parcel of real estate in northwest Atlanta on which he desired to construct a new home. Before beginning construction, however, he needed to remove an existing home which occupied the site. He discussed the matter with a friend, Steve Allgood, who had a cousin in the demolition business, and through him made arrangements with the cousin, Howard Allgood, to have the house either moved from the site or demolished. If the structure was moved, Kilgore was to be paid $1,000 for it, and if it was demolished, he was to pay Allgood’s company, American Demolition, Inc., $2,000 for its services. Kilgore’s primary concern was to remove the house without damage to the trees on the lot, and the idea of moving it rather than demolishing it did not originate with him.

On or about February 23, 1984, Howard Allgood entered into a written agreement with AMRAC, Inc., through its president, Charles Ray Whitetree, whereby he agreed to sell Kilgore’s house to AMRAC for $3,500, and AMRAC, in turn, agreed to remove the house from the lot “within thirty (30) days after release.” This “release” provision had reference to the fact that the house was occupied at the time by Kilgore’s son, who, of course, needed to vacate it before it could be moved.

A day or two after the contract between AMRAC and Allgood was executed, AMRAC, again acting through Whitetree, contracted to sell the house to Frank Cookson for $28,500. This contract specified that the house would be cut in half, delivered in segments to Cook-son’s lot, and “put back together structurally sound” on a foundation to be provided by Cookson. It contained the following disclaimer: “If structure is destroyed due to fire, vandalism, or other acts not controlled by the mover or seller, liabilities are limited to the actual amounts of deposits only.” The amount of the deposit paid to AMRAC by Cookson was $8,500.

Although his son did not vacate the house until late March, Kilgore had, by the first of April, become impatient to see the house gone from the property. On April 6,1984, he telephoned Whitetree to urge him to get the project underway, telling him: “Look, if you don’t have it out by the 11th, . . . just forget it; I’ll tear the house down.” Kilgore testified that at the time he made this call he had not yet met Whitetree and had only that same day learned his name. On April 12, Kilgore visited the property, where he found Whitetree still engagd in preparations for the move. At this time, Kilgore told Whitetree he was no longer interested in having the house moved and ordered him to take his equipment and leave the premises. Whitetree ignored these instructions and continued working. This confrontation appears to have poisoned all subsequent dealings between the two men.

Whitetree subsequently threatened to obtain an injunction against Kilgore to prevent him from demolishing the structure before it could be moved. To avoid such legal action, the parties agreed in writing to a settlement on April 16, 1984, at a meeting which took place at the courthouse. Pursuant to the terms of this agreement, AMRAC was to subcontract the removal of the house, and the move was to be completed “no later than the close of business April 27, 1984.” Additionally, AMRAC agreed to pay American Demolition a damage deposit in the amount of $1,000 against any damage which might be caused to Kilgore’s property in excess of that which was specifically contemplated by the agreement. The agreement identified four trees on the property (including one dead tree) which AMRAC was authorized to cut down in order to effect the removal of the house from the lot. Of specific concern to Kilgore was the preservation of two large pine trees and several dogwood trees bordering the driveway along which the house was to be moved. Kilgore was authorized to “have a representative at the site [with] the authority to stop work if not proceeding in accordance with this agreement.”

The subsequent preparations for the move got off to a bad start when Whitetree bulldozed a swath in the woods alongside the driveway, thereby destroying several of the smaller trees which Kilgore had wished to preserve. By the morning of April 26, the house had been cut into two segments, and the removal of one of the segments from the foundation was about to commence. Kilgore measured the two segments at this time and determined that the larger of them was 29 feet 3 inches wide. He had previously measured the distance between the two large pine trees, which were located across the driveway from each other, and had determined that the distance between them was only 26 feet. He confronted Whitetree with these measurements and told him he would not be permitted to move the house unless he divided it again. According to Kilgore, whose testimony in this regard was not controverted, Whitetree’s only response was to say, “I’m going to come on through.” A stalemate thereupon ensued, during which Kilgore continued to insist that Whitetree either “cut [the house] where it wouldn’t damage those trees any more or leave the property,” while Whitetree continued to manifest his intention to proceed as planned. Finally, after repeatedly refusing to leave the property voluntarily, Whitetree was arrested for criminal trespass by an off-duty Atlanta police officer whom Kilgore had hired to be present on the scene in the role of his contractually authorized representative. A few days later, the house was demolished by American Demolition.

At trial, Whitetree testified that, had he been allowed to try, he believed he could have cleared the two pine trees by leaning the house on an angle, maintaining that it would have been possible to “cock the house as much as three or four feet without any problem of losing the house. . . .” He did not explain how lifting one side of the house three or four feet higher than the other would have reduced the horizontal space occupied by the structure by the 3’3” necessary to enable it to fit between the two pine trees, nor was he able to recall whether he had explained this plan to Kilgore, who, as previously indicated, testified without dispute that Whitetree’s only response upon being confronted with the difference between the two measurements was to insist that he was “coming on through” anyway. American Demolition’s president, Howard Allgood, testified that, based on his experience in the demolition business, he believed tipping the house in the manner described by Whitetree would have caused it to fall apart. Later, Whitetree’s counsel conceded that the house would have fallen over had it been “tilted upon its side.”

Whitetree filed the present action against Kilgore, Howard All-good, Steve Allgood, and American Demolition, Inc., to recover damages for breach of contract; and Kilgore counterclaimed to recover for the unauthorized damage to his property allegedly caused by White-tree. Based on Whitetree’s testimony that he would have made an estimated profit of $10,000 on the resale of the house to Cookson and that he had been forced to expend approximately $21,500 to secure an acceptable replacement house for Cookson, the jury returned a verdict in his favor against Kilgore in the amount of $31,500, while at the same time, awarding Kilgore $250 on his counterclaim against White-tree. Also, the jury held American Demolition, Howard Allgood, and Steve Allgood jointly liable to Whitetree for $4,500, representing the $3,500 which the latter had paid for the house, plus his $1,000 damage deposit. Kilgore initiated the present appeal, contending that the evidence was insufficient to support the jury’s verdict against him; and Whitetree filed a cross-appeal, complaining of the trial court’s failure to give certain jury charges which he had requested. Held:

1. We must agree with Kilgore that the evidence did not support a finding that he had breached the contract. Kilgore’s concern for protecting the trees on his property was specifically reflected in the contract, which specified that Kilgore’s representative on the scene would be authorized to stop the work “if not proceeding in accordance with this agreement.” When confronted at the scene by the measurements showing that one of the segments of the house was more than three feet wider that the space between the two pine trees, Whitetree offered Kilgore no logical explanation as to how he could have moved the structure between these trees without damaging them, nor did he offer any such explanation at trial, except to speculate on the possibility that the trees may have been farther apart at the top than at the base. Based on the undisputed facts established by the evidence, we hold that the trial court erred in denying Kilgore’s motion for directed verdict on the issue of liability.

2. Even assuming arguendo that there was a breach of the contract by Kilgore, and even assuming further that Whitetree was entitled to recover his lost profits from the proposed sale of Kilgore’s residence to Cookson as damages for this breach, the evidence would not, in any event, have supported an award in his favor in the amount found by the jury, i.e., $31,500. This award was evidently calculated by taking Whitetree’s estimate of his lost profit on the sale of Kilgore’s house, in the amount of $10,000, and adding to it the $21,500 in expenses which Whitetree said he had incurred in providing Cookson with an acceptable replacement house. However, Whitetree would have suffered damages in the latter amount only if he had provided the replacement house to Cookson free of charge, something he was clearly not obligated to do and presumably did not do. (Indeed, according to the terms of his contract with Cookson, his liability in the event of the destruction of Kilgore’s house due to “acts not controlled by” him was limited to the return of Cookson’s deposit.) Assuming Cookson paid AMRAC the same amount for the replacement house that he had contracted to pay for Kilgore’s house (i.e., $28,500), AMRAC’s lost profit on the transaction would not have been $31,500 but merely $8,000 — the difference between the $21,500 cost of purchasing, moving, and re-installing the replacement house and the $13,500 estimated cost of purchasing, moving, and re-installing Kilgore’s house (a figure Whitetree arrived at by adding to the $3,500 he had paid for the house the $10,000 he estimated it would have cost him to relocate it). Cf. Hardwood Lumber Co. v. Adam & Steinbrugge, 134 Ga. 821 (68 SE 725) (1910).

Decided April 17, 1989

Rehearing denied May 8, 1989

Carr & Kessler, Kathleen Kessler, Pannell & Christenson, Winnie P. Pannell, Samuel J. Brantley, for appellant.

E. Wayne Wallhausen, for appellee.

3. The cross-appeal is rendered moot by the foregoing. The portion of the judgment awarding damages against Kilgore is reversed. The remainder of the judgment is not affected by this decision.

Judgment reversed in part in Case No. A89A0471. Appeal dis-

missed in Case No. A89A0472.

Sognier and Pope, JJ., concur.


source: Caselaw Access Project

author: Deen, Presiding Judge.

license: Public Domain

text:
    A89A0796.
    YOUNG v. THE STATE.
    (383 SE2d 908)
   Deen, Presiding Judge.

This appeal from the judgment and sentence on two counts involving violation of the Georgia Controlled Substances Act was docketed in this court January 12, 1989. On March 1, 1989, no brief or enumeration of errors having been filed, this court inquired by telephone whether the case was being withdrawn. Appellant’s counsel replied in the negative, spoke of the press of other cases, and promised to make the necessary filings during the next five days.

On March 6, 1989, an enumeration of errors and a brief covering the first of appellant’s nine enumerations were filed. On March 10 a second brief, labeled “Continuation of Brief for Appellant” and treating Enumerations 2 through 7 was filed; and on March 28, a brief covering the eighth and ninth enumerations of error was filed with the Clerk of this court. Thus the complete brief was not filed until some 75 days after the case was docketed, and 45 days after the date when the brief and enumeration of errors would have been due under the relevant statute and rules.

Decided May 2, 1989

Rehearing denied May 8, 1989.

Herbert Shafer, for appellant.

Lewis R. Slaton, District Attorney, David Wright, Assistant District Attorney, for appellee.

Because of recent cases decided by this court, we cannot dismiss the case. See Golden v. State, 190 Ga. App. 477 (379 SE2d 230) (1989); In the Interest of M. O. B., 190 Ga. App. 474 (379 SE2d 898) (1989). We have reviewed the record of this case in its entirety and find no error in the proceedings below.

Judgment affirmed.

Birdsong, J., concurs. Benham, J., concurs in the judgment only.


author: Carley, Chief Judge.

text:
    A89A0390.
    BEKAERT STEEL WIRE CORPORATION et al. v. GEORGIA SUBSEQUENT INJURY TRUST FUND.
    (382 SE2d 197)
   Carley, Chief Judge.

An employee of appellant-employer suffered a job-related injury to his back and, as the result, began to receive workers’ compensation benefits. This being the employee’s second job-related injury, appellants-employer/insurer applied to appellee-Georgia Subsequent Injury Trust Fund (Fund) for reimbursement. See OCGA § 34-9-350 et seq. The Fund accepted appellants’ claim for reimbursement.

Appellants thereafter negotiated a settlement agreement with the employee. Appellants did not, however, obtain approval of the settlement agreement from the administrator of the Fund prior to submitting that agreement for approval by the State Board of Workers’ Compensation (Board). After receiving notification of the approval of the Board’s settlement agreement, the administrator of the Fund moved for the Board to rescind the Fund’s reimbursement agreement with appellants. The Board granted the Fund’s motion and the rescission of the reimbursement agreement was subsequently affirmed by the superior court. Appellants filed an application for discretionary appeal to this court. There having been no appellate decisions construing the applicable statutory provisions, appellants’ application was granted.

Decided May 8, 1989.

Smith, Shaw, Maddox, Davidson & Graham, Jo H. Stegall III, for appellants.

Michael J. Bowers, Attorney General, H. Perry Michael, First Assistant Attorney General, Wayne P. Yancey, Senior Assistant Attorney General, Rita J. Llop, Assistant Attorney General, for appellee.

The reimbursement agreement between appellants and the Fund predated the settlement agreement between appellants and the injured employee. Compare Op. Atty. Gen. 86-48. In such circumstances, OCGA § 34-9-363.1 (b) provides that appellants “shall obtain” the approval of the settlement agreement by the administrator of the Fund prior to submission of that settlement agreement for the approval of the Board. “ ‘Shall’ is a mandatory word.” McDougall v. Stoner, 134 Ga. App. 342 (214 SE2d 384) (1975). Appellants secured the Board’s approval of the settlement agreement without obtaining the mandatory pre-approval of that agreement by the Fund’s administrator. OCGA § 34-9-363.1 provides that, in such circumstances, “the reimbursement agreement between the employer or the insurer and the . . . Fund shall become null and void, and the . . . Board . . . shall, upon the petition of the administrator of the . . . Fund, issue an order rescinding the reimbursement agreement. ...” (Emphasis supplied.) Accordingly, in acting to rescind the reimbursement agreement, the Board was merely effectuating the mandatory provisions of OCGA § 34-9-363.1. It follows that the superior court did not err in affirming the Board’s order of rescission. The original reimbursement agreement being null and void, appellants’ remedy is to seek a compromise agreement with the Fund. “[N]othing in this Code section shall prohibit the parties from reaching a compromise settlement as to reimbursement from the . . . Fund, upon approval of the . . . Board. . . .” OCGA § 34-9-363.1 (b).

Judgment affirmed.

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


text:
    A89A0884.
    MAY v. MACIOCE.
    (382 SE2d 198)
   Deen, Presiding Judge.

The appellant, William May, made an arrangement with Pete Eller for Eller to go to Germany and purchase a Mercedes automobile, and provided Eller with $23,000 for that purpose. Eller, however, never delivered a Mercedes and returned only $3,000 of the money. On January 23, 1986, Eller’s wife executed a bill of sale transferring her right to her own Mercedes to May, and an agreement with May providing that the bill of sale would be “null and void” if the Ellers paid all the installments due on a loan that May obtained later. Under this arrangement, Eller’s wife retained possession and use of her Mercedes.

Eller, however, owed Virginia Higginson and Richard Balkcum for money received from them under a similar deal he had with May. Higginson and Balkcum obtained a judgment against Eller for $19,090.15. On July 3, 1986, Higginson and Balkcum and a marshal went to Eller’s place of business for levy and execution upon the judgment. Eller pointed out his wife’s car, indicated it was his, and surrendered it to the marshal. On July 28, 1986, the marshal sold the vehicle for $7,500 at public sale to Higginson and Balkcum, who sold the car for $13,000 to the appellee, John Macioce. Macioce later obtained a Georgia certificate of title on the vehicle.

May did not learn of the levy and execution sale until after the fact, and Higginson and Balkcum would not tell him to whom they had sold the car. In July 1987, however, May discovered the whereabouts of the car, went to Macioce’s home, and took the car. He returned to South Carolina and eventually obtained a South Carolina certificate of title.

Macioce commenced this action against May, Higginson, and Balkcum. The trial court granted summary judgment for Higginson and Balkcum on Macioce’s complaint and May’s cross-claim, and also granted summary judgment for Macioce against May on the issue of liability. May originally proceeded to appeal all of the above, but ultimately brought up only this appeal from the grant of summary judgment for Macioce. Held:

“The law has wisely provided that a purchaser at judicial sale is bound only to see that the officer has competent authority to sell, and is apparently proceeding to sell under the prescribed forms. Civil Code § 5454 [presently, OCGA § 9-13-168]. Further than this he is not required to investigate, so far as the sale is concerned. And if the sale has taken place under a valid judgment against the defendant in execution and has occurred at the time and place prescribed by law, and was conducted apparently under the prescribed forms, an innocent purchaser at such sale acquires a title to the property sold, provided the defendant in execution had a good title to the same at the date of the judgment, or acquired such title between the date of the judgment and the date of the levy.” Johnson v. Equitable Securities Co., 114 Ga. 604, 607-608 (40 SE 787) (1901). (Emphasis supplied.)

In construing Code sections essentially the same as present OCGA §§ 9-13-167; 168, the Supreme Court has held that “the purchaser must determine for himself the validity of the judgment and the execution issued thereon, the levy made by the sheriff and the sale or deed of the property. He buys at his peril insofar as the judgment, the levy, and the deed are concerned; and where, as here, the deed conveyed no title because the defendant in fi. fa. had no leviable interest in the property, he acquired no title.” Milam v. Adams, 216 Ga. 440, 442 (117 SE2d 343) (1960).

Decided May 8, 1989.

Maria S. Georgeton, for appellant.

Chuck R. Pardue, Daniel J. Craig, for appellee.

We agree with Macioce that May’s security interest in the vehicle is unperfected. OCGA §§ 40-3-51 through 40-3-53; General Fin. Corp. v. Hester, 141 Ga. App. 28 (232 SE2d 375) (1977). Nevertheless, an unperfected security interest is superior to no interest at all. There is positive evidence in the record that the defendant in execution had no title whatsoever in the vehicle. Accordingly, there is at least an issue of fact over whether Macioce acquired any title in the vehicle, and the trial court erred in granting summary judgment for Macioce.

Judgment reversed.

Birdsong and Benham, JJ., concur.


text:
    A89A0973.
    CRAMER v. STATE OF GEORGIA.
    (382 SE2d 200)
   Deen, Presiding Judge.

The appellant, Tim Cramer, was court-appointed counsel for Arthur Middleton in a criminal trial in which Middleton was convicted of furnishing alcohol to minors. When the trial court indicated that Middleton would have to post bond if he wanted to be released overnight before the sentencing scheduled for the next day, Cramer offered to vouch for Middleton’s appearance. The trial court released Middleton because of that assurance, but unfortunately Middleton skipped town. Over 8 months later, the trial court held an execution hearing, and ordered that a bond of $4,102 be forfeited and that fi. fa. be issued for levy upon Cramer’s property as surety on the bond. This appeal followed. Held:

Cramer’s alleged oral promise to vouch for the appearance of his client was in the nature of a suretyship, not an original, independent undertaking, and in the absence of a writing was unenforceable. OCGA § 13-5-30 (2), generally; Ross v. W. P. Stephens Lumber Co., 138 Ga. App. 748 (227 SE2d 486) (1976). See also Gunsallus v. Busbee, 149 Ga. App. 109 (253 SE2d 470) (1979). Accordingly, the trial court erred in entering judgment against Cramer.

Decided May 8, 1989.

Cowen & Cowen, Martin L. Cowen III, for appellant.

John T. Newton, Jr., Solicitor, for appellee.

Judgment reversed.

Birdsong and Benham, JJ., concur.


author: Benham, Judge.

text:
    76184.
    EASLEY v. CLEMENT.
    (383 SE2d 907)
    Decided April 14, 1989
    Rehearing denied May 9, 1989.

      James W. McKenzie, Jr., for appellant.

      Donald R. Anderson, for appellee.
   Benham, Judge.

This court having entered on June 9, 1988, a judgment in the above-styled case (187 Ga. App. 799 (371 SE2d 416) (1988)), affirming in part and reversing in part the judgment of the trial court; and the judgment of this court having been reversed in part on certiorari by the Supreme Court in Easley v. Clement, 259 Ga. 107 (376 SE2d 860) (1989), the judgment heretofore rendered by this court is vacated, and the judgment of the Supreme Court is made the judgment of this court.

Judgment affirmed in part and reversed in part.

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


author: Birdsong, Judge.

text:
    A89A0140.
    STEPHO v. ALLSTATE INSURANCE COMPANY.
    (382 SE2d 154)
   Birdsong, Judge.

The facts giving rise to this litigation show that Stephen Stepho maintained a household in which were resident with him four sons and a daughter. Stephen Stepho owned a pick-up truck which was insured by Allstate Insurance Company. Named insured in that policy were Stephen Stepho and his adult son, Saad Stepho. On October 4, 1987, Stephen Stepho authorized, by telling, his adult son, Saad, to use the pick-up truck on the son’s business. On October 4, 1987, Stephen Stepho’s minor son, Nashwan Stepho, aged 14, was a passenger in Stephen’s car while being operated by his adult son, Saad. Nashwan was one of the four natural sons resident in Stephen Stepho’s home. While operating the vehicle, Saad was involved in an accident, resulting in personal injury to his brother, Nashwan. On pages 5-6 of the insurance policy issued to Stephen Stepho, naming Stephen and Saad as insureds, appears the following: “Exclusions — What is not covered. This coverage does not apply to liability for . . . (6) bodily injury to any person related to a person insured by blood . . . and residing in that person’s household.” Stephen Stepho on behalf of his minor son, Nashwan, brought this complaint for personal injuries suffered by Nashwan against his adult, emancipated son Saad, and against Allstate Insurance Company, apparently on the theory that the accident and injury were caused by an uninsured motorist. Allstate moved for summary judgment which was granted. It is that grant that forms the basis of this appeal. Held:

At the outset we can eliminate from our consideration in this case the application of laws dealing with uninsured motorist coverage. As pertinent, uninsured motor vehicle as defined by the policy in question is one which is not covered, coverage is legally denied by the insurer or does not meet minimal coverage amounts. Allstate in this case disputes coverage only if the contractual exclusionary clause is applicable. It is undisputed that the automobile in which Saad and Nashwan were traveling at the time of the accident was an insured vehicle. See Roderick v. Intl. Indem. Co., 183 Ga. App. 393, 394 (3) (358 SE2d 923).

Appellants, father and son, present for our consideration the mixed question of the interaction of the doctrines of family immunity and contractual exclusions based upon familial relationships.

In the case of Arnold v. Arnold, 189 Ga. App. 101 (375 SE2d 225), affirmed 259 Ga. 150 (377 SE2d 856), this court considered the doctrine of family immunity. The reason underlying that doctrine generally is recognized to be that lawsuits between parent and child incite to disruption of family harmony and encourage fraud or collusion. In the Arnold case, supra, this court held that blood relationship was not the only or overriding condition. The case recognized that the family immunity doctrine was pertinent primarily between spouses and parents and unemancipated children. Litigation between parents and emancipated and/or adult children may not be so proscribed. See Reese v. Reese, 142 Ga. App. 243, 247 (236 SE2d 20); Davis v. Cox, 131 Ga. App. 611, 614 (206 SE2d 655); Wright v. Wright, 85 Ga. App. 721, 725 (1) (70 SE2d 152). This court held specifically in the Arnold case, supra at p. 103: “Logic dictates that these legal principles would be equally applicable to suits brought by an unemancipated minor sibling against an adult sibling who is residing in the same parental household as the suing sibling.”

It is apparent that if this court dealt only with the family immunity doctrine, Nashwan as an unemancipated sibling, would be entitled to sue in tort his emancipated brother Saad, even though they dwell together in the parental home. Arnold, supra at 104.

However, the grant of summary judgment in this case is not based on the general doctrine of family immunity, but specifically upon the contractual provision in the contract of insurance.

Appellants argue however that because under the family immunity doctrine Nashwan apparently could pursue a tort action against his older, adult brother, Saad, the total exclusionary clause in the contract is broader in its limitation than the policy of general family immunity. Considering this state’s policy of mandatory insurance coverage to afford complete liability coverage for the protection of the public and the insured, if the contractual exclusion is broader than the tort immunity of the State, the exclusionary clause would be against the public policy. See GEICO v. Dickey, 255 Ga. 661, 662 (340 SE2d 595). This in substance is the argument advanced by appellants to challenge the grant of summary judgment to Allstate.

The question for our resolution is whether the permissibility of inter-sibling suit under the family immunity doctrine makes the family exclusionary clause in this contract of insurance against public policy. We hold that it does not, for one may contract away a right if that action is not against public policy. Doyle v. Liberty Mut. Ins. Co., 160 Ga. App. 138, 139 (286 SE2d 475); Brown v. Five Points Parking Center, 121 Ga. App. 819, 821 (1) (b) (175 SE2d 901).

It has been held that exclusionary clauses in policies of insurance are not per se prohibited in this state. Cotton States Mut. Ins. Co. v. Neese, 254 Ga. 335, 338 (6) (329 SE2d 136). Thus we must determine whether within the context of this case, the family exclusion unfairly penalizes innocent victims or unfairly exposes an insured to liability and thus is against public policy.

It is manifest that innocent victims will not suffer under this exclusionary clause. Nashwan, Saad and Stephen Stepho are all insureds under the terms of the policy. As insureds, the law presumes their knowledge of the contents of the policy (Wheeler v. Standard Guaranty Ins. Co., 168 Ga. App. 565 (309 SE2d 805)), including the family exclusion. Since the policy included as well as excluded all parties involved, no insured will unfairly be exposed to additional liability. See Southern Guaranty Ins. Co. v. Preferred Risk Mut. Ins. Co., 257 Ga. 355, 356 (359 SE2d 665). Under such circumstances the family exclusion clause is not against public policy and properly may be upheld. Harbin v. Sams, 171 Ga. App. 263 (319 SE2d 99). It follows that the trial court properly granted summary judgment to appellee Allstate Insurance Company.

Decided April 28, 1989

Rehearing denied May 9, 1989

Edgar L. Crossett III, for appellant.

Chambers, Mabry, McClelland & Brooks, Clyde E. Rickard III, Fain, Major & Wiley, Thomas E. Brennan, for appellee.

Judgment affirmed.

Deen, P. J., and Benham, J., concur.


text:
    A89A0203.
    INMAN v. THE STATE.
    (382 SE2d 122)
   Carley, Chief Judge.

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

1. Pursuant to the provisions of OCGA § 42-6-20 et seq., the Interstate Agreement on Detainers Act, appellant moved to dismiss the charges against him. The trial court denied the motion and this ruling is enumerated as error.

Notwithstanding appellant’s attempts to distinguish Thompson v. State, 186 Ga. App. 379 (367 SE2d 247) (1988) and Greathouse v. State, 156 Ga. App. 491 (274 SE2d 835) (1980), those decisions are controlling. “[Ajppellant was tried within 180 days of receipt of all the items required by the statute.” Thompson v. State, supra at 380. The trial court did not err in denying appellant’s motion to dismiss.

2. The trial court charged on the definition of “burglary,” employing the language of OCGA § 16-7-1: “A person commits the offense of burglary when, without authority and with the intent to commit a felony or theft therein, he enters or remains within . . . any building ... or any room or any part thereof.” The trial court’s failure to give, without request, a further charge on the definitions of “felony” and “theft” is enumerated as error.

There was no error in failing to instruct the jury on the definition of “felony” because, under the indictment, theft was the only felony that was relevant. See Hibbert v. State, 146 Ga. App. 887 (2) (247 SE2d 554) (1978). Moreover, even if a charge on the definition of “felony” had been applicable, it would not have been in error to fail to give it absent a written request. See Burger v. State, 245 Ga. 458, 462 (5) (265 SE2d 796) (1980). Likewise, it was not error to fail to instruct on the definition of “theft.” “The word ‘theft’ is not... a technical word of art with narrowly defined meaning, but a word of general and broad connotation, covering any criminal appropriation of another’s property to the taker’s use. [Cit.]” Henson v. State, 136 Ga. App. 868, 869 (1) (222 SE2d 685) (1975). “[A]bsent a request, [a term having a common meaning and subject to common understanding] need not be defined in the court’s charge. [Cit.]” West v. State, 252 Ga. 156, 159 (2) (313 SE2d 67) (1984).

Decided April 14, 1989

Rehearing denied May 9, 1989.

Roger L. Curry, for appellant.

Thomas J. Charron, District Attorney, Nancy I. Jordan, James F. Morris, Assistant District Attorneys, for appellee.

Judgment affirmed.

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


author: Banke, Presiding Judge.

text:
    A89A0240, A89A0241.
    GOBER et al. v. HOSPITAL AUTHORITY OF GWINNETT COUNTY (two cases).
    (382 SE2d 106)
   Banke, Presiding Judge.

These appeals arise from the same litigation which gave rise to Gober v. Nisbet, 186 Ga. App. 264 (367 SE2d 68) (1988) (cert. denied). The appellee herein was named as a co-defendant in the two actions below, based on allegations of negligence which were identical to those made against the other defendants named therein. In Gober v. Nisbet, supra, we held that the suits could not be considered valid renewal actions pursuant to OCGA §§ 9-2-61 (a) and 9-11-41 (d), with the result that the trial court should have granted summary judgment to the defendants involved in that appeal, based on the running of the statute of limitation. Subsequent to that decision, and in reliance thereon, the appellee herein sought and obtained summary judgment on identical grounds. In the present appeals, the plaintiffs contend that the appellee waived the statute of limitation defense by failing to assert it in its original answers. In addition, they contend that our prior decision in Gober v. Nisbet, supra, was incorrect and should be overrule;! and that, even if it was not incorrect, it set forth a new rule of law which should be given prospective application only. Held:

1. The statute of limitation defense was not waived by the appellee but was properly asserted by amendment to its answers. “CPA § 15 (a) [OCGA § 9-11-15 (a)] allows a party to amend his pleading as a matter of course and without leave of the court at any time before the entry of a pre-trial order. In the instant case, [the appellee] did exactly that, using the amended answer affirmatively to plead the statute of limitation.” Security Ins. Co. of Hartford v. Gill, 141 Ga. App. 324, 325 (233 SE2d 278) (1977). Moreover, an affirmative defense such as the statute of limitation may properly be raised by motion for summary judgment even though it has not been asserted in the answer. See Brown v. Moseley, 175 Ga. App. 282, 283 (1) (333 SE2d 162) (1985); Phillips v. State Farm Mut. Auto. Ins. Co., 121 Ga. App. 342 (2) (173 SE2d 723) (1970); Catalina, Inc. v. Woodward, 124 Ga. App. 26 (1) (182 SE2d 921) (1971). Accord Beazley v. Williams, 231 Ga. 137 (200 SE2d 751) (1973).

Decided April 3, 1989

Rehearing denied May 9, 1989

John F. Manning, Butler & McDonald, James E. Butler, Mary Lou Keener, for appellants.

Blasingame, Burch, Garrard & Bryant, Gary B. Blasingame, James B. Matthews II, Long, Weinberg, Ansley & Wheeler, Robert G. Tanner, for appellee.

2. We do not agree that a new rule of law was announced in Gober v. Nesbit, supra. In deciding that case, we simply applied the prior holding of this court in Perry v. Landmark Fin. Corp., 141 Ga. App. 62, 63 (232 SE2d 399) (1977), that in order to file a valid renewal action pursuant to § 41 (d) of the CPA, “it is essential that the first action be dismissed . . . before the second action becomes a valid and pending suit.” Accord Brinson v. Kramer, 72 Ga. App. 63, 66 (33 SE2d 41) (1945). Although we disapproved a contrary interpretation of Perry which had appeared in Hilliard v. Edwards, 169 Ga. App. 808, 809 (315 SE2d 39) (1984), we did not find it necessary to overrule Hilliard but simply rejected its characterization of the Perry decision on the ground that it was mere dicta and could not be squared either with the language of OCGA § 9-11-41 (d) or with the language of Perry itself. Thus, Gober v. Nisbet broke no new ground; and, even if it had, it would nevertheless be binding in the present appeal pursuant to OCGA § 9-11-60 (h), which specifies that “any ruling by the Supreme Court or the Court of Appeals in a case shall be binding in all subsequent proceedings in that case in the lower court and in the Supreme Court or the Court of Appeals as the case may be.” See Braner v. Southern Trust Ins. Co., 255 Ga. 117, 122 (335 SE2d 547) (1985). Cf. Leader Nat. Ins. Co. v. Smith, 177 Ga. App. 267, 273 (339 SE2d 321) (1985).

Judgments affirmed.

Sognier and Pope, JJ., concur.


text:
    A89A0293.
    LaPANN v. THE STATE.
    (382 SE2d 200)
   Birdsong, Judge.

Frank LaPann was convicted at a bench trial of aggravated assault and cruelty to a child. The trial court treated the cruelty as having merged with the aggravated assault and imposed sentence for the assault as confinement for three years but suspended upon payment of a $700 fine. LaPann brings this appeal on the general ground of insufficiency of the evidence. Held:

The evidence shows that the victim of the aggravated assault and cruelty counts, LaPann’s 17-year-old adopted daughter, together with her sister, worked at a fast food restaurant. The victim and her older sister, aged 18, told their parents they were going to their place of work, and would be working late. The parents decided to go and eat supper with their children only to discover that the two girls did not report for work. (Actually the victim did work a later shift but was not at the restaurant when the parents arrived. The older sister did not report for work at all.) The parents spent several hours unsuccessfully looking for the two girls. Both parents sat up most of the night waiting for the girls to return home. They eventually returned home at about 5:00 a.m. The parents were very upset and concerned about the whereabouts and safety of their daughters. The two young women sat down and attempted to convince their parents they had been at work. After about 30 minutes of heated discussion, the appellant reached over and removed a piece of firewood from a kindling box approximately 16 inches long, three-quarters of an inch wide, and one and one-half inches thick. While the victim was still seated, he struck her once or twice on the leg, once around the shoulder and when he sought to strike her again on the back or shoulder, she threw up her arm in defense. The blow apparently glanced off her arm, and she was struck on the top, back, part of her head. A gash resulted that was approximately three-sixteenths to one-half inch deep and about one and one-half inches long and required ten sutures to close. The evidence further indicated that each time the young woman was struck, a bruise resulted. The victim testified that her father drew back for each blow and delivered it with force. Appellant weighs about 235 pounds. Appellant denied intending to do more than impose disciplinary punishment. The daughter testified that she considered the beating as nothing more than justifiable punishment and characterized her head wound as her fault and only an accident.

A person commits aggravated assault when he assaults with any object, device, or instrument which, when used offensively against another, is likely to or actually does result in serious bodily injury. Miller v. State, 174 Ga. App. 703 (331 SE2d 616). What constitutes a dangerous weapon capable of doing serious damage to the victim of an assault depends not necessarily on the nature of the object itself but on its capacity and the manner of its use, to inflict great bodily harm. See Gabler v. State, 177 Ga. App. 3 (338 SE2d 469). Moreover, applied force is legally justified only when a parent’s conduct in disciplining a minor is reasonable. See Ellis v. State, 137 Ga. App. 834, 838 (5) (224 SE2d 799).

Decided May 9, 1989.

Hollingsworth & Richardson, W. Gene Richardson, for appellant.

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

Whether the injuries sustained and the implement used to inflict those injuries amounted to an aggravated assault and whether the force as applied was an act of reasonable exercise of discipline are questions particularly within the province of the trier of fact. Watts v. State, 239 Ga. 725, 727 (238 SE2d 894). After the trier of fact has rendered a judgment of guilty and appellant seeks to overturn that judgment on the general grounds, the only question presented to an appellate court is whether there is evidence sufficient to convince a rational trier of fact beyond reasonable doubt of guilt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560). Viewing the evidence in a light most favorable to the judgment of guilt which was rendered (see Ridley v. State, 236 Ga. 147 (223 SE2d 131)), we are satisfied that the judgment of the trial court had ample support and should be affirmed. See Jones v. State, 141 Ga. App. 17, 18 (232 SE2d 365).

Judgment affirmed.

Deen, P. J., and Benham, J., concur.


text:
    A89A0427.
    GUFFEY v. THE STATE.
    (382 SE2d 202)
   Birdsong, Judge.

Appellant, Michael Eugene Guffey, was convicted of child molestation of his seven-year-old stepdaughter, M. E. He appeals the judgment of conviction and sentence.

1. Appellant asserts that the trial court abused its discretion in finding M. E. and J. G., age 5, competent to testify.

In his brief appellant makes numerous assertions, some which are not supported by the record. Unsupported factual assertions contained in the briefs of the parties, but not supported by the record, cannot be considered in the appellate process. Behar v. Aero Med Intl., 185 Ga. App. 845 (1) (366 SE2d 223).

Appellant notes that following the competency examination of J. G., the trial court opined that her competency was “a mighty close question,” but concluded that the witness was competent and that “she will tell the truth as she sees it, but I think its a close question.” Appellant relies on various precedents of the Georgia appellate courts, including Strickland v. State, 164 Ga. App. 845 (297 SE2d 491). We find these precedents distinguishable from the case sub judice.

On appellate review, we cannot merely substitute our judgment for that of the trial court in resolving questions of competency, for our views of this matter are perforce based upon reading the trial record without benefit of having observed the courtroom demeanor of the witnesses. The determination of competency of a child witness rests in the sound discretion of the trial court, and we will not reverse in the absence of manifest abuse of discretion. Thurmond v. State, 220 Ga. 277 (3) (138 SE2d 372); Reece v. State, 155 Ga. 350 (1) (116 SE 631). “ ‘(T)he standard of competency of a child to be a witness . . . (is) “not that he be able to define the meaning of an oath, nor that he understand the process under which the oath is administered, but rather that he know and appreciate the fact that as a witness he assumes a solemn and binding obligation to tell the truth relative to the case and concerning such matters as he may be interrogated on, and that if he violates the obligation he is subject to be punished by the court.” . . . Because the trial court has had the opportunity to observe the child during the competency examination and because such observation provides material indicia of competency (or the lack thereof) which this court cannot glean from a cold record, we will upset the ruling of competency only when the record clearly shows that the child was not competent as . . . defined. . . .’ ” In the Interest of J. E. L., 189 Ga. App. 203, 204 (1) (375 SE2d 490).

Review of the children’s responses during competency inquiry and of their testimony at trial fails to reveal any manifest abuse by the trial judge in declaring either of them competent to testify.

2. Appellant asserts the trial court erred in admitting into evidence acts of an alleged similar transaction attributed to the appellant. The record reflects that the victim’s younger sister, J. G., was allowed to testify regarding an incident of her sexual abuse by the appellant.

Evidence of similar crimes is admissible where its relevance to show identity, motive, plan, scheme, bent of mind, lustful disposition and attitude towards the female members of a family, and course of conduct, outweighs its prejudicial impact. Conaway v. State, 188 Ga. App. 561 (3) (373 SE2d 660); Oller v. State, 187 Ga. App. 818 (2) (371 SE2d 455). “However, before it is admissible, two conditions must be satisfied. First, there must be evidence that the defendant was in fact the perpetrator of the independent crime. Second, there must be sufficient similarity or connection between the independent crime and the offense charged.” Anderson v. State, 184 Ga. App. 293, 294 (361 SE2d 270); Oller, supra at 819-820. In a child molestation case, “[t]he sexual abuse of young children, regardless of the sex of the victims or the nomenclature or type of acts perpetrated upon them, is of sufficient similarity to make the evidence admissible.” OUer, supra at 820, and cases therein cited. Moreover, we find particularly relevant for the purposes above stated, evidence of sexual abuse of another child within the same family unit.

Decided May 9, 1989.

W. Danis Hentz, for appellant.

Ralph L. Van Pelt, District Attorney, John L. O’Dell, Susan R. Sarratt, Assistant District Attorneys, for appellee.

Balancing the probative value of the evidence of appellant’s sexual abuse of the victim’s younger sister against its potentially prejudicial impact, Oller, supra at 820-821, we find that the trial judge did not abuse his discretion by admitting J. G.’s testimony.

3. Appellant asserts that the trial court erred in refusing to direct a verdict of acquittal for the reason that the evidence was insufficient to enable a rational trier of fact to return a verdict of guilty.

“[A] motion for directed verdict in a criminal trial should only be granted where there is no conflict in the evidence and the evidence demands a verdict of acquittal as a matter of law.” Taylor v. State, 252 Ga. 125 (1) (312 SE2d 311).

On appeal the evidence must be viewed in the light most favorable to the verdict. Watts v. State, 186 Ga. App. 358 (1) (366 SE2d 849). The posture of the evidence when so viewed is not such as to demand a verdict of acquittal. Review of the transcript in a light most favorable to the jury’s verdict “reveals ample evidence from which any rational trier of fact could conclude beyond a reasonable doubt that appellant was guilty of [the offense] charged.” Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560); Baggett v. State, 257 Ga. 735 (2) (363 SE2d 257).

Judgment affirmed.

Deen, P. J., and Benham, J., concur.


author: Deen, Presiding Judge. Benham, Judge,

text:
    A89A0488, A89A0489.
    PONDER v. THE STATE (two cases).
    (382 SE2d 204)
   Deen, Presiding Judge.

Appellant Ponder has filed two separate but related appeals, the first (Case No. A89A0488) being from a judgment resulting from entry of a guilty plea to a charge of possession of cocaine with intent to distribute, and the second (Case No. A89A0489) from an order revoking probation because of a violation consisting of commission of the cocaine offense. In both appeals he enumerates as error the trial court’s acceptance of his guilty pleas because they were allegedly not knowingly and intelligently entered but were obtained in violation of due process, in that he was allegedly not advised on the record (1) of his right to compulsory process or (2) of the statutory presumption of innocence in his favor. Held:

1. Our examination of the record of Case No. A89A0489 reveals that this court is without jurisdiction to consider a direct appeal. An appeal from an order revoking probation is among the classes of cases requiring utilization of the discretionary appeal process. OCGA § 5-6-35 (a) (5). Case No. A89A0489 must therefore be dismissed.

2. After scrutinizing the entire records of both of these cases, we find no error. We agree with appellant as to the necessity, in a free society such as ours, of ensuring that every defendant receives his full panoply of constitutional guaranties. Although the transcript does not contain the two specific phrases, or “magic words,” the absence of which is enumerated as error, the reasonable person would infer from a reading of the transcript that the substance of these words — and perhaps even the words themselves — had been conveyed in pre-trial exchanges between defendant and his counsel. During the hearing, defense counsel stated in his place that he had “explained to [Ponder] his legal and constitutional rights . . . [and] the consequence of a guilty plea.” Moreover, the transcript reveals that the prosecuting attorney, at the outset of the hearing, asked a lengthy series of questions regarding appellant’s understanding of his legal status and of his constitutional rights, to all of which defendant/appellant answered in the affirmative.

In McClendon v. State, 256 Ga. 480 (350 SE2d 235) (1986), appellant challenged the validity of his guilty plea on grounds similar to those enumerated in the instant case. In its opinion affirming the judgment the Supreme Court stated, at 481: “The trial court, prior to accepting [defendant’s] guilty pleas, determined that [he] was not intoxicated . . . The court then determined that [defendant] . . . had been fully apprised of his rights by his attorney. The court then further described the rights that [defendant] would be waiving by pleading guilty. . . . Although the court did not specifically address each issue found in Superior Court Rule 33.8, we find the court’s determination of voluntariness clearly supported by the record. We find no error. Cf. Purvis v. Connell, 227 Ga. 764 (182 SE2d 892) (1971).” Like the Supreme Court in McClendon, supra, we find appellant’s enumerations in Case No. A89A0488 to be without merit.

Case No. A89A0489 dismissed; judgment affirmed in Case No. A89A0488.

Birdsong, J., concurs. Benham, J., concurs specially.

Benham, Judge,

concurring specially.

Since the transcript of the guilty plea hearing clearly supports the trial court’s determination that appellant’s plea was voluntarily made, and the Supreme Court has ruled in McClendon v. State, 256 Ga. 480 (350 SE2d 235) (1986), that strict compliance with Uniform Superior Court Rule 33.8 is not necessary in such a situation, I concur specially in the majority’s affirmance of the judgment in Case No. A89A0488.

Decided May 9, 1989.

Carl J. Wilson, Jr., for appellant.

Willis B. Sparks III, District Attorney, Thomas J. Matthews, Assistant District Attorney, for appellee.


text:
    A89A0717.
    RUTHERFORD v. THE STATE.
    (382 SE2d 205)
   Banke, Presiding Judge.

The appellant was jointly indicted with three other persons on a charge of possessing 28 grams or more of cocaine in violation of the Controlled Substances Act. He was tried with one of the co-indictees, and both were found guilty. In this appeal from the denial of his motion for new trial, he contends that a portion of the evidence against him should have been suppressed as the fruit of an unlawful search and seizure.

The evidence, construed in favor of the verdict, established the following facts. The appellant was contacted by Phillip Scales, who, acting as an informant for the federal Drug Enforcement Administration, sought to broker a sale of cocaine from the appellant to an undercover agent. In the company of one of the co-indictees, the appellant later met with Scales at a restaurant and then proceeded with him to an adjacent motel, where Scales rented a room. Subsequently, the undercover agent who was to purchase the cocaine telephoned the motel room, spoke with the appellant, and agreed to meet him at the adjacent restaurant to finalize the transaction. At some point during these discussions, the cocaine was brought to the motel room by the two remaining co-indictees. The appellant ultimately left the motel room with the cocaine, met with the undercover agent, and proceeded with him to the parking lot of another nearby restaurant to consummate the sale. He was arrested at this time, and the cocaine was seized. The undercover agent and several backup officers then went to the motel room, knocked on the door, and, when Scales opened the door, entered and arrested the three co-indictees. At this time, the officers observed certain drug paraphernalia “in plain view” inside the room, including a set of scales. The room was “secured” while a search warrant was obtained, and the items in question were subsequently seized pursuant to that warrant. It is this evidence which the appellant contends should have been suppressed as the fruit of an unlawful search and seizure. Held:

Decided May 9, 1989.

John W. Stokes, Jr., for appellant.

Thomas C. Lawler III, District Attorney, Debra K. Turner, Assistant District Attorney, for appellee.

“The Fourth Amendment right against unreasonable search and seizure is a personal right and may not be asserted vicariously. Rakas v. Illinois, 439 U. S. 128 (1) (99 SC 421, 58 LE2d 387). And, an individual who claims he is aggrieved by an illegal search and seizure only through the introduction of evidence secured by a search of a third person’s premises has not had any of his Fourth Amendment rights infringed. Id.” Staton v. State, 164 Ga. App. 464, 465 (297 SE2d 375) (1982). See also State v. Peabody, 247 Ga. 580, 581, n. 5 (277 SE2d 668) (1981).

It is apparent without dispute from the evidence in this case that the appellant was not present in the motel room when the officers entered it and that he had neither a proprietary nor a possessory interest in the room. Under such circumstances, he could not claim a reasonable expectation of privacy in the contents of the room, with the result that he had no standing to assert a Fourth Amendment violation. Accord State v. Scott, 176 Ga. App. 887 (1) (339 SE2d 276) (1985). Accordingly, pretermitting whether the entry into the room was lawful, the trial court did not err in denying the appellant’s motion to suppress.

Judgment affirmed.

Sognier and Pope, JJ., concur.


text:
    A89A0751.
    PAUL v. THE STATE.
    (382 SE2d 374)
   Banke, Presiding Judge.

The appellant, her sister, and her sister’s live-in boyfriend were jointly indicted and tried for trafficking in cocaine. At trial, the appellant admitted having brought the cocaine in question into the co-defendants’ residence and having kept it there without their knowledge. She was accordingly convicted, while they were found not guilty. She brings this appeal from the denial of her motion for new trial. Held:

1. The appellant contends that in charging the jury the trial court gave the misleading and improper impression that she could be found guilty of trafficking in cocaine based on evidence that she had been merely in constructive possession of the contraband. The earlier version of OCGA § 16-13-31 (a), under which the appellant was charged, specified in pertinent part that one “knowingly in actual possession” of the required quantity of cocaine was punishable for trafficking. In Lockwood v. State, 257 Ga. 796 (364 SE2d 574) (1988), the Georgia Supreme Court held that this statutory language was incompatible with a jury charge permitting a trafficking conviction to be based on constructive possession. Accord Chews v. State, 187 Ga. App. 600 (6) (371 SE2d 124) (1988). (The statute has since been amended to delete the word “actual” from subsections (a), (b), and (c) of the Code section.) See Ga. L. 1988, p. 420, § 2.

In the present case, the court recalled the jurors to the courtroom following its original charge to clarify to them that although a defendant could be convicted of the lesser included offense of simple possession based on either actual or constructive possession, a conviction of trafficking must be based on “actual possession of the cocaine.” The court qualified this, however, by charging the jury that a defendant could be found guilty of trafficking “on the basis of constructive possession if you find that that defendant was a party to the crime of trafficking in cocaine. ...” The court concluded by stating: “I hope that is clear to you. The constructive possession under trafficking in cocaine only applies if you find that defendant was a party to the crime with an individual who was in actual possession of the cocaine.”

Although defense counsel maintains on appeal that these supplemental instructions were improper and misleading, when asked by the trial judge if he had any exceptions or objections to them, he responded, “No, sir.” Under such circumstances, he has waived the right to assert such objections on appeal. See Bryant v. State, 256 Ga. 273, 274 (347 SE2d 567) (1986); Louis v. State, 188 Ga. App. 435 (3) (373 SE2d 231) (1988). The charge in question would appear, in any event, to have been harmless to the appellant in view of her admission at trial that she was the one who had brought the cocaine into the house and was keeping it there.

2. The appellant contends that there was no showing that she was in possession of 28 grams or more of cocaine with “a purity of 10 percent or more,” as was alleged in the indictment. See OCGA § 16-13-31 (a) (1). The cocaine in question was contained in three separate plastic bags at the time it was seized. According to a forensic chemist from the State Crime Laboratory who had examined and analyzed the contraband, each bag contained several “sticks” of “french-fried like material,” and the combined weight of all the sticks was 35.9 grams. The witness had performed an actual chemical analysis on only one of the sticks. However, he had conducted a “color test” on one stick from each bag, and he testified that these tests indicated both “a presence of cocaine and that they were all the same.” On the basis of the chemical analysis and of his visual examination of the material, including the color tests, he testified that in his opinion each of the three bags contained cocaine of 100 percent purity. We hold that this testimony, in combination with the appellant’s trial testimony, was sufficient to enable a rational trier of fact to conclude beyond a reasonable doubt that the appellant was in actual, knowing possession of more than 28 grams of cocaine, within the contemplation of OCGA § 16-13-31 (a).

Decided May 9, 1989.

William I. Sykes, Jr., for appellant.

C. Andrew Fuller, District Attorney, for appellee.

3. The appellant contends that a new trial should be granted because the court allowed her to be represented by the same counsel who was representing her two co-defendants. Prior to trial, the court questioned all three defendants about their decision to be represented by the same attorney, asking each if he or she had “any concern that his [i.e., counsel’s] representation of any of the others may cause him to have a problem in fully and completely representing you.” Each defendant responded in the negative, whereupon the court asked the appellant additional questions to make certain that she understood she did not have to testify. She responded that she had discussed this with counsel, that she understood-her rights in this regard, and that she was satisfied with the representation she was receiving. We note that her trial counsel continues to represent her on appeal.

The appellant contends that, notwithstanding her responses to the trial court’s questions, the court erred in allowing her to be represented by counsel of her choice because “the evidence in the instant case shows without doubt not only the serious potential for conflict, but a very serious conflict.” Counsel has made no attempt to enlighten us as to the nature of this supposed conflict,, and we are unable to discern it from an examination of the trial transcript. In particular, we note no apparent inconsistency between the position taken by the appellant at trial and the position taken by her two co-defendants. Consequently, we find this enumeration of error to be without merit. Compare Wheat v. United States, 486 U. S._(108 SC 1692, 100 LE2d 140) (1988).

Judgment affirmed.

Sognier and Pope, JJ., concur.


text:
    A89A0772.
    LEWIS v. THE STATE.
    (382 SE2d 207)
   Banke, Presiding Judge.

The appellant was sentenced to 12 months’ confinement based on his plea of guilty to the charge of driving under the influence. He contends on appeal that the trial court erred in accepting the plea without first making a determination that it was being entered freely and voluntarily, with a full understanding of the consequences. Held:

1. “A direct appeal from a conviction based on a guilty plea will lie ‘(w)here the question on appeal is one which may be resolved by facts appearing in the record. . . .’ Smith v. State, 253 Ga. 169 (316 SE2d 757) [(1984)].” Doby v. State, 180 Ga. App. 453 (349 SE2d 467) (1986).

2. It is apparent from the transcript of the appellant’s arraignment hearing both that he was not represented by counsel at the time he entered his plea and that no inquiry was made to ascertain whether he was entering his plea freely and voluntarily, with knowledge of the rights he was thereby waiving. The only question asked of the appellant before he entered his plea was, “[H]ow do you plead?” When he replied, “Guilty,” he was directed by the solicitor to “[s]ign where the X is right here,” at which time he signed the following statement appearing on the back of the “uniform traffic citation, summons, accusation/warning” setting forth the charge against him: “I have been advised of my rights to be represented by counsel and have counsel appointed to represent me if I am indigent; plead not guilty and be tried by a jury or a judge; confront the witnesses against me; and not give incrimination evidence against myself. I hereby waive these rights, state that I have not been induced by any threat or promise to enter this plea and do freely and voluntarily enter my plea of guilty.” The appellant was not asked prior to signing this statement whether he had read and understood its contents.

“In Boykin [v. Alabama, 395 U. S. 238 (89 SC 1709, 23 LE2d 274) (1969)], the court held that when the accused pleads guilty the record must disclose the defendant’s voluntary waiver of his constitutional rights. The court [will] not presume a waiver, if it [is] not affirmatively shown on the record. Id. at 243 and n. 5.” State v. Germany, 245 Ga. 326, 327 (265 SE2d 13) (1980). The most reliable method of perfecting the record in this regard is to conduct an inquiry into the defendant’s understanding of the nature and consequences of his plea. “[T]here is no procedural requirement that the judge personally make all the inquiries provided that they are made in his presence,” State v. Germany, supra, 245 Ga. 328-9; and the failure to make such an inquiry is not fatal where the record reflects that the defendant was represented by counsel who advised him of all of his rights and of the consequences of entering the plea. See Huff v. Barnett, 230 Ga. 446 (197 SE2d 345) (1973). Because the record in the present case reveals without dispute that the appellant was not represented by counsel and that no inquiry whatever was made into his understanding of the consequences of the plea, we must conclude that an affirmative waiver of rights was not established, with the result that the trial court erred in accepting the plea. Compare Harris v. State, 167 Ga. App. 153 (1) (306 SE2d 79) (1983); Tahamtani v. State, 177 Ga. App. 52 (338 SE2d 488) (1985); Doby v. State, 180 Ga. App. 453 (2), supra; Hayes v. State, 182 Ga. App. 563 (359 SE2d 164) (1987).

Decided May 9, 1989.

Gilbert J. Murrah, for appellant.

Rikard L. Bridges, Solicitor, for appellee.

3. The appellant’s remaining enumerations of error are rendered moot by the foregoing.

Judgment reversed.

Sognier and Pope, JJ., concur.


author: McMurray, Presiding Judge.

text:
    A89A0885.
    NEIMAN-MARCUS v. GAMMAGE.
    (382 SE2d 208)
   McMurray, Presiding Judge.

Plaintiff Neiman-Marcus filed this action on an account against defendant Gammage. Plaintiff sought a judgment in excess of $10,000 based on the initial purchase price for a fur coat of $8,925, plus interest on the account.

The sale of the fur coat on approval was acknowledged by both parties. The defendant presented evidence that, beginning soon after the sale, he had repeatedly attempted to return to plaintiff the fur coat in the same condition as when he had received it, but that plaintiff had refused to take the coat back. A demand for payment and refusal were also established. The jury was presented with the issue of whether any valid offer of return was timely and reasonably made, and instructed as to two possible verdicts.

The jury returned a verdict in favor of plaintiff in the amount of $4,000 principal and one dollar interest. Whereupon, following a bench conference with counsel, the trial court instructed the jury that “you are not authorized to reach a compromise verdict as you have obviously done. You either have to find in the full amount of the purchase price, which is undisputed, you may or may not find interest however ... or you could find for the defendant...” Following the reinstruction the jury resumed their deliberations and subsequently returned a verdict in favor of defendant.

Decided May 9, 1989.

Jones, Morrison & Womack, Lewis N. Jones, for appellant.

Gammon & Anderson, Joseph N. Anderson, Sara Nell Langford, for appellee.

Plaintiff appeals from the judgment in favor of defendant. In its sole enumeration of error, plaintiff contends the trial court erred in refusing to enter judgment upon the verdict initially published by the jury which found in favor of plaintiff. Held:

A party cannot ignore during trial that which he considers to be an injustice during trial of the case in hopes of obtaining a favorable verdict and then enumerate that alleged injustice as error on appeal when the verdict proves to be adverse to him. Kelley v. Austell Bldg. Supply, 164 Ga. App. 322, 323 (1), 324 (297 SE2d 292); Simmons v. Edge, 155 Ga. App. 6, 7 (2), 8 (270 SE2d 457); Long County Bd. of Education v. Owen, 150 Ga. App. 245, 247 (1) (257 SE2d 212). Since the issue plaintiff now enumerates as error was raised for the first time on motion for new trial, nothing is presented for review by this court. McKeighan v. Long, 154 Ga. App. 171, 173 (268 SE2d 674); Keno v. Alside, Inc., 148 Ga. App. 549, 551 (3) (251 SE2d 793). “ ‘[I]t is not error for a trial judge not to receive an improper or imperfect verdict, and to cause the jury to retire and put their verdict in proper form.’ Lowery v. Morton, 200 Ga. 227, 229 (36 SE2d 661), and numerous cases there cited. Further, as noted in the same opinion (p. 230), it is the responsibility of the complaining party to object to the procedure at the time the trial judge makes the decision to require the jury to return to the jury room . . .” (Emphasis supplied.) Wilder v. Wilder, 229 Ga. 102, 103 (189 SE2d 695).

Judgment affirmed.

Carley, C. J., and Beasley, J., concur.


text:
    A89A0997.
    SHORTT v. THE STATE.
    (382 SE2d 209)
   McMurray, Presiding Judge.

Defendant was charged by indictment with the offenses of two counts of homicide by vehicle in the first degree (Counts 1 and 2), two counts of violation of the Georgia Controlled Substances Act' (Counts 3 and 4), driving under the influence (Count 5), and driving on the wrong side of the road (Count 6). A jury returned a verdict of not guilty on the charge of driving under the influence. On Counts 1 and 2, defendant was convicted of the lesser offenses of homicide by vehicle in the second degree. He was also convicted of the two counts of violation of the Georgia Controlled Substances Act (Counts 3 and 4) and of driving on the wrong side of the road (Count 6). Defendant was sentenced on each of the charges of which he was convicted, although the sentence for driving on the wrong side of the road was vacated pursuant to the trial court’s conclusion that such offense merged into the offenses of homicide by vehicle in the second degree. On appeal defendant’s sole enumeration of error raises the sufficiency of the evidence in support of the conviction of the two offenses of homicide by vehicle in the second degree and the offense of driving on the wrong side of the road. Held:

The evidence when viewed in a light most favorable to the verdict shows that on the morning of December 5, 1987, defendant was driving his automobile southbound on Georgia Highway 75 in White County. Defendant’s automobile crossed the centerline of the highway into the northbound lane and collided with a northbound automobile. The driver and one of the passengers of the northbound automobile were killed in the collision.

No witness to the collision testified at trial. The State’s evidence as to the manner in which the collision occurred consisted of the opinion testimony of two Georgia State troopers based on information gathered at the scene of the collision after the event. Trooper Gober arrived at the scene of the collision approximately 23 minutes after the collision. This experienced officer had investigated approximately 3,300 motor vehicle collisions in his eight years with the Georgia State Patrol. Trooper Gober testified that he found fresh gouge marks (a depression left in the pavement by some metal part of the automobiles on impact). While the highway was 23 feet 8 inches wide, the gouge mark was 7 feet 8 inches from the east side of the pavement. Based on the location of the gouge mark, the damage to the automobiles, and the location where the automobiles came to rest, Trooper Gober opined that at the time of the impact defendant’s automobile was in the northbound lane and that the automobile with which defendant collided had also been in the northbound lane, its proper lane of travel.

Another State Trooper, Sergeant Swatzenberg, testified as an expert in the area of accident reconstruction. Sergeant Swatzenberg, who did not visit the scene of the collision, testified as to his opinion based upon Trooper Gober’s accident report and photographs of the scene taken shortly after the collision. The photographs show the damage to the automobiles and the positions at which they came to rest. Sergeant Swatzenberg opined that at the time of the collision ¡defendant’s automobile had been in the northbound lane, that is, on the wrong side of the road.

Prior to a lunch recess during the trial, Trooper Gober had made repeated references to the right front of defendant’s automobile being the primary area of damage. After the lunch recess, Trooper Gober testified that the primary area of damage to defendant’s automobile had been the left front. Trooper Gober explained the change in his testimony by stating that he had been confused about the question that morning. The effect of this confusion on the weight of this witness’ testimony was for the jury to determine. Hicks v. State, 175 Ga. App. 243, 244 (4) (333 SE2d 113).

Decided May 9, 1989.

Whitmer & Law, James H. Whitmer, G. Hammond Law III, for appellant.

C. Andrew Fuller, District Attorney, Jessica K. Vaughn, Assistant District Attorney, for appellee.

Viewing the evidence in a light most favorable to the verdict, we conclude that the jury could have found that the evidence excluded every other reasonable hypothesis except that of defendant’s guilt of the offenses of which he was convicted. OCGA § 24-4-6. A rational trier of fact could reasonably find defendant guilty beyond a reasonable doubt of the offenses of which he was convicted. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560); Franklin v. State, 189 Ga. App. 405, 409 (3) (376 SE2d 225).

Judgment affirmed.

Carley, C. J., and Beasley, J., concur.


text:
    A89A1153.
    COTTON v. THE STATE.
    (382 SE2d 211)
   Deen, Presiding Judge.

Kenneth Roger Cotton was convicted of rape and appeals asserting only the general grounds. Held:

During the early evening hours of February 8, 1988, the victim walked to a nearby convenience store. As she walked home, she heard someone running towards her from the rear. He grabbed her forearm, told her to be quiet and hit her on the side of the head. He pulled her over to the side of the house, put her jacket over her head, made her take off her pants and raped her. He instructed her to count to one hundred before she moved, and he left. She put on her pants and immediately followed him. She saw him get onto a ten-speed bicycle and ride off. She noticed that he had a white plastic grocery bag on the handlebars. She could describe his clothing and knew that he was very tall, but she never saw his face.

The victim’s boyfriend and one of his friends were working on his car in a nearby driveway. They saw a tall man walking very fast up the street. They greeted him casually and saw him pick up his bike. They noticed that one of the bike pedals was broken and that he had a white “Table Supply” grocery bag on the handlebars. When the crying victim ran from the side of the house and called out, “That guy there,” the rapist got on his bicycle and left. The two young men got in a car, drove off after him, but were unable to catch him. When they returned to the victim’s home, the police had arrived and they gave the officers a description of the man they had pursued.

Decided May 9, 1989.

Robert M. Bearden, Jr., for appellant.

Willis B. Sparks III, District Attorney, Thomas J. Matthews, Assistant District Attorney, for appellee.

Later, that same evening, police officers brought a ten-speed bike and a white plastic bag, which the witnesses identified as belonging to the rapist. The officers also asked one of the witnesses to go over to a squad car to look at a man who was inside. After the accused was made to get out of the car, the witness identified him as the man on the bike and testified that he recognized the man’s clothing and facial features.

A Macon police detective testified that she heard a radio lookout for a man on a bicycle and stopped Cotton when she realized that he matched the description of the rapist. Before she could ask for identification, he jumped off the bike and ran to the door of a nearby house. Appellant claimed that the person who lived there was a friend, but the man who answered the knock on the door denied knowing him.

Appellant’s alibi witness, a woman with whom he lived, testified that appellant had telephoned her after his arrest and asked her to testify that he was at home on the evening in question, that he bought $.40 worth of groceries, and had cooked up a lot of fish to eat. She testified that she refused to lie for him. She had not seen him on the evening in question, and he had not bought any groceries or cooked any fish.

The medical testimony confirmed the victim’s testimony by indicating that she had had recent sexual intercourse.

Viewing the evidence in the light most favorable to the prosecution, we find that a rational trier of fact could have found Cotton guilty beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Judgment affirmed.

Birdsong and Benham, JJ., concur.


text:
    A89A1199.
    LOPER v. THE STATE.
    (382 SE2d 212)
   Deen, Presiding Judge.

Appellant Loper was arrested on charges of possession of marijuana with intent to distribute. Shortly before arraignment he dismissed one attorney and hired another; the latter entered a plea of “not guilty,” and a trial for Loper and a co-defendant was set for approximately one month later. Because Loper was allegedly uncooperative, the second attorney subsequently requested that he be allowed to withdraw; the request was denied, but three days before trial Loper and his co-defendant dismissed this attorney, also. The trial court refused to postpone the trial and informed Loper that he must decide whether to be defended by the more recently discharged attorney or to proceed pro se. Loper stepped into the hall ostensibly to consider these options, but loped away and was rearrested several months later.

Meanwhile, the trial court ordered the second attorney to defend both Loper in absentia, and the co-defendant, who had not joined Loper in flight. Counsel requested a continuance, which was denied. A jury was then impaneled, and the trial of both defendants began. During a break early in the trial, a misdemeanor plea was negotiated for the co-defendant. After counsel had waived opening argument and presented no evidence in Loper’s behalf, Loper was convicted and sentenced to five years’ incarceration. After being apprehended he unsuccessfully filed an extraordinary motion for new trial. On appeal he enumerates as error ineffective assistance of counsel and violation of his Sixth Amendment rights by the trial court in trying him in absen-. tia. Held:

1. The State contends that by voluntarily absenting himself from the courtroom at the time the trial was scheduled and returning only under compulsion of arrest some months later, Loper waived his Sixth Amendment right to be present and face his accusers. See, e.g., State v. Phillips, 247 Ga. 246 (275 SE2d 323) (1981); Croy v. State, 168 Ga. App. 241 (308 SE2d 568) (1983). In Phillips and Croy, supra, however, as well as in all but one of the other cases cited by the State in support of its contention, the jury had already been impaneled when the defendant left the scene, whereas in the instant case it had not. Georgia’s Supreme Court has held that jeopardy attaches when, in a jury trial, the defendant “has been arraigned, has pled and a jury has been impaneled and sworn.” Shaw v. State, 239 Ga. 690, 692 (238 SE2d 434) (1977).

In Pollard v. State, 175 Ga. App. 269 (333 SE2d 152) (1985), this court reviewed a fact situation similar in all significant respects to that in the case at bar; i.e., the defendant appeared at the courtroom before the hour the trial was scheduled to begin, he spoke with his attorney concerning the possibility of accepting a guilty plea offer, and then he disappeared. A jury was thereupon selected and impaneled and the trial begun, with the result that defendant was found guilty. The issue on appeal in that case, as in the one sub judice, was whether defendant/appellant had waived his Sixth Amendment right to be present. This court noted Shaw and other cases cited supra, and then held, at 270: “We here adopt the rule that for Sixth Amendment waiver purposes, trial begins when jeopardy attaches, and thereafter a defendant can waive his constitutional right of confrontation by voluntarily absenting himself from the proceedings. ... In the absence of jeopardy attaching, the waiver principles are inapplicable, and we must conclude that appellant is entitled to a new trial since his Sixth Amendment right to confrontation was violated by trial proceeding in his absence.” Under the Shaw and Pollard rules, jeopardy had not attached when appellant Loper voluntarily absented himself from the scene of the proceedings; hence no waiver occurred. He is therefore entitled to a new trial, and the case must be remanded for proceedings consistent with this holding.

Decided May 9, 1989.

C. Jackson Burch, for appellant.

Spencer Lawton, Jr., District Attorney, Lars T. Granade, Assistant District Attorney, for appellee.

The State also asserts that the fact that appellant admitted that he had planned to lie to the trial court in order to have his case continued somehow takes the instant case out from under the Pollard rule. We fail to see any such significance. Smith v. State, 184 Ga. App. 739 (362 SE2d 384) (1987), on which the State relies, involves a situation where, under Shaw, supra, jeopardy had attached, and therefore does not support the State’s position. Fictum v. State, 188 Ga. App. 348 (373 SE2d 54) (1989), also cited by the State, is readily distinguishable on its facts.

2. Having found that a new trial is required, and noting that appellant’s second enumeration is of the sort that would not likely recur in a new trial, we do not address that enumeration.

Judgment reversed.

Birdsong and Benham, JJ., concur.


text:
    A89A0283.
    SWEET v. THE STATE.
    (382 SE2d 376)
   Birdsong, Judge.

The appellant Marion Leon Sweet was convicted of arson. After an evening of extremely loud and boisterous and ungovernable behavior, when he took his pregnant girl friend to the hospital after an altercation between them, he was arrested; and it was found by the jury that, as charged, he set fire to his jail cell in the night. His defense was that his cellmate set the fire. On appeal he enumerates 11 errors. Held:

1. We find no harmful error in the trial court’s denial of Sweet’s motion for preliminary hearing. The offense was committed on September 28, 1987. Sweet did not file the motion until Friday, October 16, 1987, and a grand jury scheduled to meet Monday, October 19, indicted him on October 20. The purpose of the preliminary hearing is to authorize the keeping in custody of one accused with probable cause of committing a crime until the grand jury determines whether he should stand trial. State v. Houston, 234 Ga. 721 (218 SE2d 13). It was appellant’s own lassitude which denied him this preliminary hearing, and when he finally made his motion, one working day before the grand jury was to determine the indictment, the grand jury hearing itself then performed the function which a preliminary hearing would have served. Thus, a preliminary hearing held after indictment would be pointless. A preliminary hearing may be a handy tool for defense discovery, but it is not one he is entitled to by right for discovery purposes.

2. Sweet contends he was entitled to a grant of mistrial on grounds the State “used its peremptory challenges in a racially motivated manner and therefore, contrary to law.” Certainly the deliberate or purposeful exclusion by striking of a minority from participation as jurors violates the constitution (Batson v. Kentucky, 476 U. S. 79 (106 SC 1712, 90 LE2d 69)); but it is neither fair nor logical to say that the bald fact that all of the persons peremptorily struck by the State were black, means the strikes were racially motivated. The issues in Batson as to jury challenges ultimately signify only because of their effect on discrimination in jury selection. The appellant in this case is black. Since the jury that convicted him was composed of nine black persons and three white persons, and the alternate juror was black, we do not see how there can be a claim that the jury which tried appellant was racially discriminatory. Therefore, there is no reason to inquire in the manner of their choosing.

3. Appellant complains that the trial court allowed two witnesses to testify that the fire placed their lives “in imminent danger” and brought them “near death,” these being, he says, the ultimate jury questions and inadmissible incompetent opinions.

We find no error. One police lieutenant was asked: “Would you say this fire put [the prisoners’ lives] in imminent danger?” (Emphasis supplied.) See Faucette v. State, 71 Ga. App. 331 (30 SE2d 808). Clearly this witness was competent to testify as to “what he would say” of what he witnessed, as his opinion. OCGA § 24-9-65 provides: “Where the question under examination, and to be decided by the jury, shall be one of opinion, any witness may swear to his opinion or belief, giving his reasons therefor. If the issue shall be as to the existence of a fact, the opinions of witnesses shall be generally inadmissible.” Any testimony on this question, even expert testimony, is likely to be opinion only. Ultimately, the same question to be decided by the jury is one of opinion. Thus, this witness was permitted under OCGA § 24-9-65 to give his opinion as to whether he would say lives were in imminent danger. The “existence of [this] fact” was not one to be proved in any other way than by the opinion of the eyewitness who observed the fire and the prisoners’ conditions.

The same is true of the question posed to the cellmate: “Were you near death?” This is most likely a matter of opinion. In any case, the question was not directly answered after the objection was made but the cellmate only gave the details of his physical condition after the fire.

4. The trial court did not err in denying mistrial for the elicitation of “statements allegedly made by the Appellant, but which were not provided counsel in accord with Georgia law.” The statements referred to are contained in an officers’ testimony that after being jailed, appellant generally kept hollering and “talking loud, talking about he wasn’t going to stay in jail and all this kind of stuff.” Another officer gave similar general testimony, that appellant hollered and said he would get out of jail one way or another. Evidently there was much confusion and hollering and physical disturbance when appellant was being arrested and jailed. By all accounts, he made a great deal of noise. The officers in their general descriptions did not testify as to any particular new incriminating admission or statement that the defense had not already in identical substance been given.

Thus the witnesses were testifying generally and in substance as to the same statements that had in fact been provided to the defense. We do not find the defendant was harmfully denied any right to discovery of his own statements.

5. The trial court did not err in restricting cross-examination as to the cellmate’s prior convictions. In fact, this line of questioning was not “restricted” at all; the trial court simply required the appellant to support it by certified copies of any such convictions. See Kimbrough v. State, 254 Ga. 504 (2) (330 SE2d 875). If appellant could not comply with this legal requirement, the fault is his. He was not denied any constitutional right to “delve” into the cellmate’s criminal past, but was only required to do so properly.

6. Appellant contends the trial court erred in permitting a witness to testify, over objection, that appellant understood his Miranda rights. We find no harmful error. The witness testified in detail as to the appellant’s actions and his responses on being read his Miranda rights, none of which indicated any confusion on his part. In fact, although his companion agreed to take the intoximeter test, the appellant refused to do so. Some of the testimony given was that throughout his arrest and incarceration, appellant was acting “real wild” and “real hyper,” hollering and avowing generally that he would get out of jail “one way or the other.” This is not inconsistent with a reasonable conclusion that he understood his right to remain silent; it merely indicates he declined to do so.

Moreover, the situation described was not one involving questioning by police as to guilt or incrimination, but was the general circumstance of his arrest. The complained-of statements were what the appellant hollered and blurted out while acting “real wild” and “hyper.” The Miranda issue applies to whether any incriminating statements were elicited while, or because, a defendant was not advised of or did not understand his right to remain silent. The arresting officer here was merely testifying to appellant’s wild behavior; and whatever appellant chose to blurt out while evidently making no attempt to control himself, is admissible. We find that any possible error in allowing this witness to testify that the appellant understood his Miranda rights is not relevant to the circumstances of this case and it is highly probable, if not certain, that any error was harmless beyond a reasonable doubt. See Kirkland v. State, 141 Ga. App. 664 (234 SE2d 133).

7. There is no factual merit to appellant’s contention that “there was no evidence to establish that there was . . . physical damage to the jail structure itself.” See, as to the offense of arson in the first degree, OCGA § 16-7-60. He certainly was not entitled to a directed verdict of acquittal on that basis. Mattresses and other material were burned on the floor, emitting overwhelming smoke. The evidence shows the jail was at least smoke-damaged. Ultimately, the question of what constitutes “damage” is for the jury. Certainly, the evidence with all reasonable deductions therefrom does not “demand a finding” (see OCGA § 17-9-1) that the building (structure) was not damaged, which is the only circumstance in this case which would have authorized a directed verdict of acquittal.

8. Appellant contends that because the indictment did not allege in express words arson in the first degree (OCGA § 16-7-60), he could be adjudged, convicted and sentenced for no greater offense than arson in the second degree (OCGA § 16-7-61). This argument is without merit. The indictment alleged the essential elements of arson in the first degree, viz., that he did “knowingly damage by means of fire a building . . . under circumstances that it was reasonably foreseeable that human life might be endangered.” (Emphasis supplied.) The indictment went further and described those particular circumstances to be that appellant and his cellmate were locked up in the jail cell and unable to escape when the fire was ignited. Without doubt this constituted serious endangerment of life, and the jury, under the standard of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560), could rationally determine beyond a reasonable doubt that appellant committed this act. This is arson in the first degree, and appellant was properly charged, convicted, and sentenced under the form of the indictment. See State v. Hovers, 148 Ga. App. 431 (251 SE2d 397).

Even if appellant had a defense to the form of the indictment for some defect, he waived it by failing to raise it prior to trial. May v. State, 179 Ga. App. 736 (348 SE2d 61).

9. Appellant urges that the State failed to establish the requisite criminal intent necessary to sustain a conviction. Clearly the State did prove evidence of the requisite criminal intent, and the jury as rational triers of fact were authorized to find so beyond a reasonable doubt. Jackson v. Virginia, supra. The entirety of the evidence shows that appellant, as he “wildly” and obstreperously avowed, intended to get out of jail “one way or another,” and figured he was already in trouble anyway. If he did not specifically intend to endanger a life, he nevertheless set the fire (and damaged the structure) under circumstances that did endanger life, and that is all the statute requires be proved.

10. The trial court did not err in sentencing appellant to 20 years to be served consecutive to the concommitant sentence for revocation of probation. (His previous offenses included armed robbery and aggravated assault.) This does not constitute “twice punishing” the appellant for the same offense, because the probation revocation is based on the prior offenses and a violation of any condition of probation. In law, the appellant was sentenced to serve his time for the prior offenses (armed robbery and aggravated assault), and, as a separate matter, was sentenced consecutively for arson. The sentence was within the law.

11. Appellant sought to obtain a free transcript by asserting that he was an indigent. The court’s remarks in denying this motion clearly indicate it found as fact the appellant was not indigent, or a pauper. Appellant contends he was entitled to a hearing on the matter by OCGA § 9-15-2 (b). This section, however, does not mandate a hearing upon the mere filing of a petition in forma pauperis. It provides that the court “may” inquire into the truth of the affidavit of indigency, and “after a hearing” (if it holds a hearing) may award costs. The court in this case evidently had the facts at its disposal to determine the matter, and found appellant not to be a pauper. The cases posed by appellant as strictly requiring an indigency hearing (Fowler v. State, 184 Ga. App. 177 (360 SE2d 918); Clay v. State, 122 Ga. App. 677 (178 SE2d 331)), do not apply.

Decided May 10, 1989.

John M. Beauchamp & Associates, Kermit S. Dorough, Jr., for appellant.

J. Brown Moseley, District Attorney, Ron S. Smith, Assistant District Attorney, for appellee.

Judgment affirmed.

Deen, P. J., concurs. Benham, J., concurs in Divisions 1, 3, 4, 5, 6, 7, 8, 9,10, 11 and concurs in judgment only as to Division 2.


author: Beasley, Judge.

text:
    A89A0568.
    In the Interest of J. O.
    (382 SE2d 214)
   Beasley, Judge.

J. O. was adjudicated delinquent and in need of treatment and rehabilitation, OCGA § 15-11-33, as the result of an assault upon the victim with a shotgun, OCGA § 16-5-21 (a) (2). J. 0. was age sixteen at the time. The order of commitment was entered by the juvenile court on July 21, 1988.

On August 2, 1988, a “Motion for New Trial,” called by the court a motion to “reconsider,” was filed. It asserted the general grounds and that the State had failed to prove guilt beyond a reasonable doubt, based on the judge’s oral statement that he made his finding “by a preponderance of the evidence — I believe is the requirement now. . . .” The judge had asked the parties if that was correct, to which the State replied affirmatively. Counsel for J. 0. did not respond.

On November 8, 1988, the court entered a “Ruling On Juvenile’s Motion To Reconsider.” It stated that while a juvenile court may not entertain a motion for new trial, it has the inherent power to modify or reconsider its judgment during the pendency of the juvenile’s time for appeal, citing In re P. S. C., 143 Ga. App. 887 (240 SE2d 165) (1977). Although 30 days had long passed since the original order, the court also ruled that the filing of the motion, which was within the 30-day period, tolled the time for appeal, citing A & D Barrel &c. Co. v. Fuqua, 132 Ga. App. 827 (209 SE2d 272) (1974).

1. In every case, this court is required to ascertain whether it has jurisdiction, even if it is not raised by either party. Patterson v. Flint, 182 Ga. App. 650, 653 (356 SE2d 670) (1987); Newton v. K. B. Property Mgmt. &c., 166 Ga. App. 901, 902 (306 SE2d 5) (1983).

Juvenile courts are courts of limited jurisdiction, possessing only those powers specifically conferred upon them by statute. West v. Hatcher, 219 Ga. 540, 542 (134 SE2d 603) (1964). See OCGA § 15-11-5. The court was correct as to the motion for new trial vehicle. Such courts are without the power given to “superior, state, and city courts” by OCGA § 5-5-1 to consider and grant new trials.

The court traveled, instead, at least nominally on a motion to reconsider. However, the power to act recognized by In re P. S. C. had ended on the thirtieth day after the initial order of July 21, according to the analysis adopted in that case. The trial court there had acted within thirty days to vacate the initial order, in effect, by granting a rehearing before a different judge. Here the court did not exercise this “inherent” power until well beyond the appeal period.

A & D Barrel, supra, was based on the wording of OCGA § 5-6-38 (a) and gives no separate basis for tolling in the juvenile court context.

OCGA § 15-11-42, on the other hand, provides the vehicle for correction of juvenile court orders. It sets no time limits. Relief may be sought by the petition of one of a wide variety of persons involved with the child. See subsection (c). A hearing is to be held, subsection (d), and the original order of the juvenile court “shall be set aside if: (1) [i]t appears that it was obtained by . . . mistake sufficient therefor in a civil action; . . .” Subsection (a) (1).

The “motion for new trial” in this case was in effect a petition under this remedial law. The “motion” challenged the original Order as having been based on the wrong standard of proof in the trial, an alleged mistake of law. The court did hold a hearing and addressed the issue raised. Following this it entered a new order which stated that it “supersedes” the original order, resulting in the original order’s being set aside.

The fact that the court denominated the child’s “motion” as a “motion to reconsider” is not controlling. It is substance and not nomenclature which governs. Birt v. State, 256 Ga. 483, 485 (3) (350 SE2d 241) (1986). This applies both to the “motion” itself and to the court’s labeling of it. The nature of the motion, the court’s consideration of it, the procedure employed, and the final outcome all met the procedural requirements of OCGA § 15-11-42 (see also UJCR 16) so as to give the juvenile court jurisdiction to take the action now complained of. Since the notice of appeal was filed within 30 days of the new order, it was timely, OCGA §§ 15-11-64 and 5-6-38 (a), and we have jurisdiction to address the merits.

2. The first enumeration alleges that the juvenile court commitment should be reversed because the court applied the incorrect burden of proof in the adjudicatory phase. In ruling on the petition, the court explained that its remark at trial was a mere lapsus linguae and that it knew and had applied the correct standard of proof. It expressly wrote that “the evidence addressed at the adjudicatory hearing shows, beyond a reasonable doubt, that the juvenile did in fact commit the delinquent act of aggravated assault.” It entered a new order stating that it found the delinquency beyond a reasonable doubt. See OCGA § 15-11-33 (c); In the Interest of C. D. L., 184 Ga. App. 412 (361 SE2d 527) (1987); T. K. v. State, 126 Ga. App. 269 (190 SE2d 588) (1972).

Decided May 10, 1989.

Alan P. Layne, for appellant.

Richard A. Malone, District Attorney, William S. Askew, Assistant District Attorney, for appellee.

There having been no error in the standard of proof actually applied, the enumeration fails to achieve reversal and remand for further findings. Cf. In the Interest of C. T. L., 182 Ga. App. 845 (357 SE2d 298) (1987); In re R. L. Y., 181 Ga. App. 14, 15 (351 SE2d 243) (1986).

3. Complaint is also made here that the fact that J. 0. was already on probation for another violation was improperly considered by the court. On the two occasions when this was referred to, however, no objection was voiced below. It will not be considered here for the first time. Hall v. State, 189 Ga. App. 267 (375 SE2d 460) (1989).

Judgment affirmed.

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