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

text:
    76890.
    CAMPBELL v. THE STATE.
    (375 SE2d 654)
   McMurray, Presiding Judge.

Defendant appeals his conviction of the offense of driving under the influence of alcohol. Held:

Defendant was driving a vehicle which was stopped by a state trooper due to a loud muffler. The officer did not see anything about defendant’s driving that indicated he was driving under the influence of alcohol. Upon stopping defendant the officer discovered that defendant’s breath smelled of alcohol, his eyes were very bloodshot and he was unsteady on his feet, that is, he “wobbled back and forth” while he was talking to the officer. Subsequently, an intoximeter test was administered and defendant registered .10 grams percent alcohol.

The offense of driving under the influence of alcohol in violation of OCGA § 40-6-391 (a) (1) includes as one of its elements that defendant’s consumption of alcohol had rendered him a less safe driver. Taylor v. State, 184 Ga. App. 368 (361 SE2d 667). Defendant contends that his conviction was not authorized by the evidence since there was no evidence that he was so under the influence of alcohol that it rendered him a less safe driver.

The evidence of the alcohol content of defendant’s blood was sufficient “to authorize the conclusion that he was ‘under the influence of alcohol’ within the contemplation of OCGA § 40-6-391 (a) (1).” Collum v. State, 186 Ga. App. 822 (368 SE2d 578). This evidence combined with the evidence of defendant’s bloodshot eyes and unsteadiness on his feet was sufficient for a rational trier of fact to reasonably find defendant guilty of driving under the influence of alcohol beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560); Collum v. State, 186 Ga. App. 822, supra.

Judgment affirmed.

Birdsong, C. J., Banke, P. J., and Carley, J., concur. Deen, P. J., concurs and also concurs specially. Beasley, J., concurs specially. Sognier, Pope and Benham, JJ., dissent.

Beasley, Judge,

concurring specially.

The law provides a rebuttable factual presumption which makes the evidence sufficient in this case. OCGA § 40-6-392 (b) (3) states: “If there was at that time an alcohol concentration of 0.10 grams or more, it shall be presumed that the person was under the influence of alcohol, as prohibited by paragraphs (1), (2), and (3) of subsection (a) of Code Section 40-6-391.” Due to the results of the intoximeter test introduced in evidence, the presumption applied. It was not rebutted as a matter of law so as to remove it from the body of evidence. Hogan v. State, 178 Ga. App. 534, 536 (343 SE2d 770) (1986) concluded that: “The commission of the crime of DUI by violating OCGA § 40-6-391 (a) (1), ... or (a) (3) may include as an element of proof thereof, those presumptions or inferences which are established by OCGA § 40-6-392 (b) (1), (b) (2), or (b) (3).” (Emphasis omitted).

That itself would be sufficient to prove that the driver was a less safe one than if he had not been under the influence of alcohol. *

There is even more evidence, however. The officer testified that defendant stated he had one beer, he smelled of alcohol, he had bloodshot eyes, and he was unsteady on his feet. As to the latter, the officer explained that defendant “wobbled back and forth” and demonstrated to the factfinder how defendant was “moving back and forth.” The physical condition described supported a reasonable inference that defendant was not as alert mentally and did not have as much motor command for controlling the movement of the vehicle and reacting to hazard than he would have had without the alcohol consumption.

To hold that there must be evidence that the alcohol-influenced driver did in fact drive erratically or in violation of some traffic rule would import an element not present in OCGA § 40-6-391 (a) (1).

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

Pope, Judge,

dissenting.

I cannot agree with the finding of the majority that the evidence in this case was sufficient to show that the appellant’s consumption of alcohol had rendered him a less safe driver, so as to authorize a conviction of D.U.I. in violation of OCGA § 40-6-391 (a) (1). Under cross-examination the arresting officer responded that the only thing that brought appellant’s driving to his attention was that his vehicle’s muffler was loud; that appellant was not “stumbling or falling down, or anything of that nature”; that appellant was cooperative and seemed to understand everything that was going on around him; and that other than the smell of alcohol, his bloodshot eyes and unsteadiness on his feet, there was nothing else about appellant that exhibited he might be under the influence of alcohol. More importantly, when asked whether or not from his experience as an officer these symptoms would affect someone’s driving, he answered that he did not know. Thus, there was no evidence, circumstantial or otherwise, that appellant was not driving safely. Compare Collum v. State, 186 Ga. App. 822 (368 SE2d 578) (1988), cited by the majority, in which this court held that the evidence of defendant’s blood alcohol content combined with direct testimony that defendant was driving at an erratic speed and weaving, authorized the conviction.

“ ‘Although [OCGA § 40-6-391 (a) (1)] does not state such, the requirement of proof that the driver be under the influence of alcohol to a degree which renders him less safe or incapable of safely driving has been judicially imported. [Cits.]’ Peters v. State, 175 Ga. App. 463 (1) (333 SE2d 436) [(1985)].” Groom v. State, 187 Ga. App. 398, 400 (2) (370 SE2d 643) (1988). Because, I disagree with the special concurrence to the extent it holds that the rebuttable presumption contained in OCGA § 40-6-392 (b) (3) is sufficient, without more, to show that the driver was a less safe driver, and because a reasonable doubt remains under the facts and circumstances of this case as to whether appellant was under the influence of alcohol to a degree which rendered him a less safe driver, I must respectfully dissent. Accord Mulling v. State, 156 Ga. App. 404 (1) (274 SE2d 770) (1980).

Decided November 16, 1988.

L. Howard Freeman, Jr., for appellant.

Richard W. Shelton, Solicitor, for appellee.

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

       At the time of the incident here, the statute by case law included the criterion “to a degree which renders him incapable of safely driving.” Cargile v. State, 244 Ga. 871, 873 (1) (262 SE2d 87) (1979). In that case the Supreme Court equated that wording with the “less safe” language. See Howell v. State, 179 Ga. App. 633 (1) (347 SE2d 358) (1986). As of July 1, 1988, the statute has been amended to use expressly the “less safe to drive” language. Ga. L. 1988, p. 1893, § 2.

       As noted by the special concurrence, the July 1, 1988 amendment to OCGA § 40-6-391 (a) (1) codified the less safe to drive requirement which had previously been judicially imported.


source: Caselaw Access Project

author: Carley, Judge.

license: Public Domain

text:
    76972.
    LATIMORE v. INTERNATIONAL BUSINESS INVESTMENTS, INC.
    (375 SE2d 507)
   Carley, Judge.

This action was initiated when RCT, Inc., filed a complaint which sought, among other relief, a declaratory judgment as to the amount of the commission which was admittedly owed by RCT, Inc., to appellee-defendant International Business Investments, Inc. for appellee’s past services. It is clear that RCT’s complaint failed to state a claim for declaratory relief against appellee. See Oxford Fin. Cos. v. Dennis, 185 Ga. App. 177 (363 SE2d 614) (1987). Appellee did not, however, file a motion to dismiss the claim for declaratory relief. Instead, appellee filed a “third-party complaint” against appellant third-party defendant Keith Latimore.

Appellee’s third-party complaint did not purport to allege appellant’s secondary liability to appellee for appellee’s alleged primary liability to RCT, Inc. Compare Cohen v. McLaughlin, 250 Ga. 661 (301 SE2d 37) (1983). In fact, the third-party complaint could not have contained any viable allegations as to appellant’s secondary liability because the issue that was raised in the main action concerned only the liability of RCT, Inc., to appellee, rather than any liability of appellee to RCT, Inc. The third-party complaint filed in this case unquestionably sought only to establish appellant’s direct liability to appellee for the payment of the commission. Compare Cohen v. McLaughlin, supra. Therefore, appellee’s third-party complaint clearly failed to state a viable third-party claim against appellant. OCGA § 9-11-14 “provides only for service of a third-party complaint against one ‘who is or may be liable to [third-party plaintiff] for all or part of the plaintiff’s claim against him.’ It is a ‘liable over’ provision and does not authorize a defendant to seek affirmative and independent relief solely on his own behalf from one not a party to the action. [Cits.]” (Emphasis in original.) Thigpen v. Koch, 126 Ga. App. 182, 185 (1) (190 SE2d 117) (1972). See also Knapp v. Lolley, 177 Ga. App. 786 (341 SE2d 306) (1986).

Notwithstanding appellee’s failure to have stated a viable third-party claim against appellant, the trial court nevertheless granted summary judgment in favor of appellee. Appellant appeals from the trial court’s grant of summary judgment for appellee on the “third-party complaint.”

Appellant enumerates as error the trial court’s granting of appellee’s motion for summary judgment as to the non-viable third-party claim.

Appellant raised in his answer the defense of the failure of appellee’s third-party complaint to state a claim against him. In opposition to appellee’s motion for summary judgment, appellant again raised the failure of the third-party complaint to state a claim for relief as against him. In its order granting summary judgment, the trial court disposed of this defense by concluding that, “[i]n accordance with an earlier [consent] order of this Court dated May 5, 1987, [appellant] and Georgia Rental [Services, Inc.] are properly before this court as Defendants.” (Emphasis supplied.) However, if by the consent order, appellant had agreed that his proper status before the trial court was that of a defendant in the case, then he was appellee’s co-defendant as to the main action. Therefore, he certainly could not be said to have given previous consent to his status as a proper third-party defendant in appellee’s third-party claim.

Of course, notwithstanding its wording, it is possible to construe the consent order of May 5, 1987 to reflect agreement that appellant was “properly before” the trial court as a third-party defendant. However, even under this construction of the consent order, the trial court erred in granting summary judgment in favor of appellee. As appellant asserts on appeal, the mere fact that he may have agreed that he was properly before the court as a third-party defendant is significantly different from his agreement that a proper third-party claim had been asserted against him in his acknowledged capacity as a third-party defendant. The record reveals that, at the relevant times prior to the entry of the consent order, there was some controversy as to whether the third-party complaint had ever been properly served on appellant and appellant had yet to file an answer in the case. According to appellant, he had agreed to the terms of the consent order of May 5, 1987 merely to clarify this procedural issue of proper service upon him, and not for the further purpose of waiving his right to raise the substantive defense of the failure of the properly served third-party complaint to state a viable third-party claim against him. There is nothing in the record to indicate that this is not the correct construction to be given to the consent order of May 5, 1987. To the contrary, the record supports the construction of that order as addressing only the limited procedural issue of service. Appellant had not raised the OCGA § 9-11-12 (b) (6) defense at any point prior to the times relevant to the consent order, and it was not until afterwards that he filed his answer and raised that substantive defense. This is entirely consistent with a limited construction of the consent order as having addressed only appellant’s waiver of the procedural issue of service of the third-party complaint and not his waiver of the substantive OCGA § 9-11-12 (b) (6) defense. Accordingly, the consent order, as properly interpreted in the context of the record, merely reflects the parties’ mutual agreement as to the proper service of appellee’s third-party complaint upon appellant. It does not reflect appellant’s unilateral pre-answer waiver of his OCGA § 9-11-12 (b) (6) defense to appellee’s third-party complaint.

Decided November 16, 1988.

Daniel W. Latimore, Jr., Edward B. Krugman, for appellant.

Land, McKnight & Newlin, Robert H. McKnight, Jr., Jeffrey L. Cohen, for appellees.

Appellant’s defense of the failure to state a third-party claim against him was a viable and unwaived defense. “A defense of failure to state a claim upon which relief can be granted . . . may be made in any pleading permitted or ordered under subsection (a) of Code Section 9-11-7, or by motion for judgment on the pleadings, or at the trial on the merits.” OCGA § 9-11-12 (h) (2). If appellee wishes to seek enforcement of appellant’s direct liability for the commission, then appellee should itself institute a proper action for that purpose. Appellee’s remedy in this case was to move to dismiss the original declaratory judgment proceeding which was filed against it by RCT, Inc., on the ground that it failed to state a claim. (See Oxford Fin. Cos. v. Dennis, supra). However, appellee cannot use that non-viable claim as a procedural device upon which to advance its own non-viable claim for direct and affirmative relief from appellant as a third-party defendant. In view of the appellant’s viable and unwaived defense of the failure to state a third-party claim against him, the trial court erred in granting summary judgment for appellee.

Judgment reversed.

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


author: Carley, Judge. Sognier, Judge,

text:
    77261.
    THE STATE v. OWENS.
    (375 SE2d 656)
   Carley, Judge.

Appellee was charged by way of accusation with the offenses of driving under the influence of alcohol and driving too fast for conditions. When the case was first called for trial, the arresting officer was unavailable and the trial court granted the State’s motion for a continuance. At the second call of the case for trial, the trial court, over the objection of appellee, once again granted the State a continuance due to the unavailability of the arresting officer. When the case was called for trial a third time, both the State and appellee announced “ready.” At the request of the State, however, another case on the same docket was given priority and the case against appellee was, over his objection, once again continued. Subsequent to this third continuance, appellee filed a plea in bar seeking an acquittal as to both charges. The trial court conducted a hearing and issued a lengthy order in which it dismissed the accusation against appellee. The State appeals from the trial court’s order dismissing the accusation. OCGA § 5-7-1 (1).

In dismissing the accusation against appellee, the trial court explicitly relied upon speculation as to what might have occurred had it not granted the third continuance and as to what might happen in the future were the case to be called for trial a fourth time. The trial court found that, simply because the arresting officer had not then been physically present, the State’s announcement of “ready” at the third call of the case had been misleading and it further found that a fourth call of the case might “well result in another absence” by the officer. The trial court concluded that, had it not granted the third continuance after the State’s purportedly misleading announcement of “ready,” it could have dismissed the case for failure of the State to proceed and it further concluded that, should the officer fail to appear at a fourth call the result would be “more inconvenience for the court and [appellee].”

Regardless of the trial court’s authority to have previously dismissed the case or its authority to do so in the future, the fact remains that the trial court did grant a third continuance and that the case has not yet been called for the fourth time. Once the trial court has continued a case to the next term rather than to require that the State proceed to the trial of the case in accordance with its announcement of “ready,” we know of no authority for the trial court to rescind its ruling retroactively and to dismiss the accusation based upon what might have happened had it not ordered the case continued. Likewise, we know of no authority for the trial court to dismiss an accusation for want of prosecution prior to the time that the case is actually called for trial. It follows that the trial court, having ordered the present case continued until the next term, had no authority to dismiss the accusation for want of previous or future prosecution. After the trial court granted a continuance, any test of the viability of the State’s former announcement of “ready” would necessarily involve an exercise in speculative hindsight and any question of the State’s ability to present its case at some future time would necessarily involve an exercise in speculative foresight. By dismissing the accusation after it had granted a continuance and before the case had been recalled, the trial court erroneously denied the State the opportunity to have its case against appellee determined on the merits. “Under such circumstances, we conclude that the trial court exceeded its authority ... in dismissing the accusation [against appellee].” State v. Colquitt, 147 Ga. App. 627, 629 (249 SE2d 680) (1978).

Decided November 16, 1988.

Spencer Lawton, Jr., District Attorney, Jon Hope, Assistant District Attorney, for appellant.

Stanley H. Friedman, for appellee.

Judgment reversed.

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

Sognier, Judge,

concurring specially.

I agree with the majority that the judgment below should be reversed, but for a different reason. The record reflects that the trial court’s order of dismissal was, in fact, predicated on its prior, January 26, 1987, order announced in open court. The parties and the trial court all agree that order, announced after the State had failed to announce “ready” for trial for the second time, provided that should the State fail to proceed to trial the next time the case was called, the charges would be dismissed. However, the terms of the order actually prepared by appellee and signed by the trial court, also provided that in such eventuality, “[defendant shall be found not guilty of the charges pending against him.”

I agree with the State’s contention that such an order was unauthorized because “[i]t appears that the trial judge, by entering [the' January order stating that should the case not proceed to trial appellee would be adjudicated ‘not guilty’], was in effect dismissing the [accusation] with prejudice. The Civil Practice Act ([OCGA § 9-11-41 (b)]) provides for dismissals with prejudice of civil cases, but the court knows of no statutory or case authority which permits such dismissals in criminal cases.” State v. Cooperman, 147 Ga. App. 556, 558 (2) (249 SE2d 358) (1978). “A trial judge has no authority to terminate the state’s right to prosecute by erroneously attaching the label of ‘acquittal’ to his ruling [regarding dismissal].” Id. at 558 (4).

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


author: Sognier, Judge.

text:
    77327.
    LOVELL v. THE STATE. SHOOK v. THE STATE.
    77328.
    (375 SE2d 658)
   Sognier, Judge.

Ralph Lovell and Danny Shook were convicted in a joint trial of two counts of criminal damage to property in the second degree, aggravated assault, and public drunkenness. In addition, Lovell was convicted of criminal trespass, and Shook was convicted of a third count of criminal damage to property in the second degree. Both appeal.

The record reveals that on the night of November 7, 1987, appellants and Virginia Seppala entered a package store in Towns County, where Shook and Seppala attacked store clerk Tim Ivey, the son of the proprietor of the store. Ivey testified that Shook and Seppala hit him both with their hands and with a desk telephone, but that he was able to run outside to the VFW, about 500 feet away, to get his father, Jerry Ivey, who testified that when Tim reached him, he had a black eye and his face was bruised. The elder Ivey also testified that he hurried back to the package store, and as he approached it he saw Shook run out and get into a car. He took Shook back into the store, and, upon entering the premises with Shook, saw Lovell and Seppala throwing merchandise on the floor and knocking things around. He testified there were broken beer bottles, spilled beer and snack packages as well as large jars of sausages and eggs all over the floor, and the cash register and a radio had been thrown down and damaged. He testified the damage was in excess of $500. The authorities were called, and Deputy Sheriff Ronald Thacker testified at trial that appellants were “loud and boisterous and had a strong odor of alcoholic beverage” on their breaths. The tires on Ivey’s vehicle, which was parked outside the store, had been slashed. A yellow case knife was recovered from Lovell, and Richard Ernest, a Senior Firearms Examiner at the State Crime Laboratory, testified that the cut marks in the tires were made by that knife. Seppala pled guilty and is not involved in these appeals.

Debra Barrett and Susan Shook testified to separate incidents, on the same day, in which their cars were vandalized. Barrett testified that her car seats were broken, the tires slashed, and the windows broken and that Shook had subsequently offered her “restitution” for the damage, which she testified was in excess of $500. Susan Shook testified that on that date, when she returned from an errand, she found her car tires slashed. She testified the damage was less than $500. Her daughter, who had been home while her mother was out, testified that she had seen Lovell slash the tires.

1. Appellants contend the trial court erred by charging the jury as to parties to a crime as well as on conspiracy. We note, however, that the trial court specifically asked each counsel in turn whether there were any exceptions to the charge, and appellant Shook did not object to the charges, nor did he reserve objections. “The general rule is that a defendant in a criminal case is not required to except to a jury charge to preserve error for appeal. If however the trial court expressly asks if there is objection, this requires counsel to make objection or reserve his right to do so. The failure either to object or to reserve the right to object later raises a procedural default which bars subsequent appellate review of the charge. [Cit.]” Rann v. State, 183 Ga. App. 234, 236 (358 SE2d 644) (1987). Appellant Shook may not, therefore, raise this objection now.

Appellant Lovell argues, without citation to authority, that giving the charge on conspiracy in this case, when the appellants were charged only with completed acts and the charge on parties to a crime was given, overemphasized the fact that there were multiple defendants and confused the jury into believing that the burden of proof on the State was lessened. We do not agree. First, both charges were authorized. Although “[t]he indictment in this case did not allege the existence of a conspiracy between appellant [Lovell] and the other coindictees . . . , ‘ “[i]t has been repeatedly held by this court that a conspiracy may be proved, though not alleged in the indictment or accusation. [Cits.]” [Cit.]’ [Cit.] . . . ‘ “When individuals associate themselves together to do an unlawful act, any act done in pursuance of that association, by any one of the associates would, in legal contemplation, be the act of each of them.” [Cits.]’ [Cit.] Thus, the evidence authorized a charge on the law of conspiracy, and the trial court so charged.” Hart v. State, 185 Ga. App. 141 (1) (363 SE2d 599) (1987). “[W]here the evidence in a criminal case shows that two or more persons were concerned in the commission of an alleged crime, it is not harmful error for the trial court to charge [as to parties to a crime] or to charge the jury on the law of conspiracy.” Battle v. State, 231 Ga. 501-502 (202 SE2d 449) (1973).

Second, “ *[i]t is not necessary in considering a charge to assume a possible adverse construction, but a charge that is sufficiently clear to be understood by jurors of ordinary understanding is all that is required. [Cit.]’ [Cit.]” Turner v. State, 180 Ga. App. 141, 142 (348 SE2d 572) (1986). Appellant has shown nothing in the charges given which might not be understood by jurors of ordinary understanding, nor do we find any such confusing matter in the charges given. Accordingly, we find no error in these charges.

2. In Case No. 77327, appellant Lovell contends the trial court erred by charging the jury regarding voluntary intoxication as a defense because neither Lovell nor Shook testified or otherwise raised voluntary intoxication as a defense. However, there was evidence that both appellants were intoxicated, which was sufficient to authorize the jury to convict appellants on Count 4, public drunkenness, and there was no evidence that their intoxication was not voluntary. “Where there is any evidence, however slight, upon a particular point, it is not error to charge the law in relation to that issue. [Cit.] Hence, the trial court did not err by charging the jury on [voluntary intoxication as a defense.]” Johnson v. State, 185 Ga. App. 505, 506 (1) (364 SE2d 893) (1988).

3. Lovell’s final enumeration of error is that the evidence was insufficient to support the trial court’s finding of the amount of restitution. We find merit in this enumeration.

“The amount of restitution ordered may be equal to or less than, but not more than, the victim’s damages.” OCGA § 17-14-9. “ ‘Damages’ means all damages which a victim could recover against an offender in a civil action . . . based on the same act or acts for which the offender is sentenced . . . .” OCGA § 17-14-2 (2). It has long been the rule that an owner of property may not testify as to his opinion of the value of the property without giving his reasons therefor, and an opinion as to value based solely on cost price is inadmissible in evidence as it has no probative value. To be admissible, testimony as to cost price must be coupled with other evidence such as a showing of the condition of the item both at the time of purchase and at the time its value is in issue. Hoard v. Wiley, 113 Ga. App. 328 (1), (2) (147 SE2d 782) (1966). In the case sub judice, a hearing was held on the issue of restitution, and Jerry Ivey testified only to a total figure for the beer damaged or destroyed in his store. Even after attempted rehabilitation on this very issue by the district attorney, he testified that the display cases which were emptied contained several different types of beer, and that he could not “really . . . give you the exact amount” of the fair market value of the beer that was destroyed that day, but only that it was closer to a higher figure than a lower figure. (We note that in Hoard, supra, the plaintiff sued to recover the value of cases of beer and wine and was similarly unsure of the exact amounts of each different brand, but nevertheless gave a total figure for damages, which was held insufficient.) It is thus apparent that the amount of restitution was set by approximation rather than by a proper opinion of the value of the items damaged. Accordingly, we are constrained to vacate that portion of the trial court’s judgment setting the amount of restitution, and remand this case to the trial court for the amount of restitution to be set properly after hearing competent evidence.

The order regarding restitution was made joint and several and applied to both Lovell and Shook. Thus, while appellant Shook did not raise this issue in his brief on appeal, we find that “[i]t would seriously affect the fairness and integrity of the judicial system to allow an illegal and unauthorized sentence to stand [as to Shook while reversing as to Lovell],” Taylor v. State, 186 Ga. App. 113, 115 (366 SE2d 422) (1988), and therefore the restitution order is vacated and remanded as to Shook as well. See generally Almond v. State, 180 Ga. App. 475, 479-480 (1) (349 SE2d 482) (1986).

Decided November 16, 1988.

Albert F. Taylor, Jr., for appellant (case no. 77327).

Claude S. Beck, for appellant (case no. 77328).

Michael H. Crawford, District Attorney, E. J. McCollum, Assistant District Attorney, for appellee.

4. Shook contends the trial court erred when charging the jury on Count 2, aggravated assault, by failing to charge the jury on the lesser included offense of simple battery. “The landmark [Georgia] Supreme Court decision of State v. Stonaker, 236 Ga. 1, 2 (222 SE2d 354) (1976), requires a criminal defendant to make a timely written request in order to later assign error on the failure to charge a lesser included offense not encompassed in an indictment.” Williams v. State, 185 Ga. App. 633, 634 (2) (365 SE2d 491) (1988). As the record reveals that Shook did not request such a charge, there is no merit in this enumeration.

5. We find no merit in Shook’s contention that the trial court erred by charging the jury on criminal damage to property in the second degree, because appellants were charged with that crime and “[t]he trial judge must charge the jury on each crime specified in the indictment or accusation, unless the evidence does not warrant a conviction of such crime, or unless the state has affirmatively withdrawn a crime or stricken it from the indictment or accusation.” State v. Stonaker, supra at 2.

6. Shook finally contends the evidence was insufficient to authorize a conviction on all counts. We have examined the record carefully and find the evidence meets the standard enunciated in Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Judgments affirmed in part and vacated and cases remanded in part.

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


author: Beasley, Judge.

text:
    74564.
    WHISENAUT v. GRAY.
    (375 SE2d 619)
   Beasley, Judge.

Our decision holding that the request for discovery was untimely as a matter of law, Whisenaut v. Gray, 185 Ga. App. 401 (364 SE2d 285) (1987), was reversed by the Supreme Court of Georgia and remanded on June 8 for our consideration of the remaining issue. Gray v. Whisenaut, Supreme Court of Georgia, 258 Ga. 242 (368 SE2d 115) (1988).

1. Our former opinion is vacated and the opinion of the Supreme Court is adopted instead.

2. The remaining question is whether the trial court erred in compelling plaintiff to answer the interrogatories and produce the documents as requested by defendant, rejecting plaintiff’s objection that defendant’s request constituted an unauthorized commingling of discovery procedures.

The document which defendant served on plaintiff’s counsel is styled “Interrogatories and Requests for Production of Documents to Plaintiff.” In the first paragraph it requests answers to interrogatories pursuant to OCGA § 9-11-33 as well as production of documents at defense counsel’s office for inspection and copying, pursuant to OCGA § 9-11-34. Both are requested within 30 days.

A list of twenty-two follows. All but three are clearly interrogatories. They simply ask questions, although in two instances the party answering is given the option of submitting copies of described documents containing the same information, instead of supplying answers. Such a practice is provided for in OCGA § 9-11-33 (c), which section governs interrogatories.

In items 12, 13, and 14, defendant asks plaintiff to “Please produce pursuant to OCGA § 9-11-34” certain documents.

Appellant’s argument with regard to the commingling of two discovery devices in the same document is that such a form is not authorized by the Civil Practice Act, that it is confusing and therefore hazardous to the addressee, and that it denies the addressee equal protection of the laws and due process of law in violation of both the federal and state constitutions. The trial court was not persuaded by this argument and neither are we.

Although the utilization of these two discovery devices is contained in the same document, it would be placing form over substance to hold as a matter of law that this rendered them avoidable by the party to whom they were addressed. In this case there is a clear delineation, the law applicable to each is cited, the procedure outlined is correctly stated, and plaintiff points to no part of it which he does not know how to respond to. Nor did he move for a protective order pursuant to OCGA § 9-11-26 (c).

The confusion which the discovering party created in Bergen v. Cardiopul Med., 175 Ga. App. 700 (334 SE2d 28) (1985), the sole case cited by appellant, is not present here. In that case the party desiring documents and records served a notice to produce pursuant to OCGA § 24-10-26 and tried to convert it into a request to produce under OCGA § 9-11-34. But since the notice did not conform to the requirements of the latter section, it could not by alchemy be converted “into an entirely different discovery vehicle.” Id. at 702.

Decided October 27, 1988 —

Rehearing denied November 18, 1988

Larry D. Ruskaup, for appellant.

Kenneth R. Starr, for appellee.

The case cited by the Supreme Court in its opinion in this case, Ambassador College v. Goetzke, 244 Ga. 322, 323 (260 SE2d 27) (1979) repeats the rule that the appellate court “will not reverse a trial court’s decision on discovery matters absent a clear abuse of discretion.” We find none here.

Judgment affirmed.

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


text:
    76951.
    BUDGET CAR SALES v. BODDIFORD et al.
    (375 SE2d 632)
   Beasley, Judge.

Plaintiff Budget appeals from the grant of summary judgment to defendants Boddiford on Budget’s suit for $500 due to a stopped check and from the denial of its motion for summary judgment on this claim and on defendants’ counterclaim for conversion of their Volkswagen, which counterclaim was left pending.

Mr. and Mrs. Boddiford went to Budget’s lot on Saturday, May 10, 1986. They looked at cars and test drove two, including a used 1986 Pontiac Grand Am. They discussed with the saleswoman how much they could get for their trade in, a 1980 Volkswagen, and the price of the Grand Am. After discussions in the saleswoman’s office, during which she went back and forth between the sales manager’s office and her own, the Boddifords signed a “Buyer’s Offer and Purchase Option Contract” which reflected a price for the Grand Am of $13,595, a credit of $3,000 for the VW, and a downpayment of $500, paid by check.

The face of the offer contained the following: “ [i]f this order and acceptance is contingent upon the arrangement of financing, the purchaser^) offer is not accepted and the transaction is not consummated until (a) approved in writing by Dealer and a responsible Bank or Finance Company and (b) all disclosures required by the Federal Consumer Credit Protection Act (Truth in Lending Act) have been given and (c) purchaser(s) have signed an installment Sale Contract.”

The offer was signed by sales manager Hafer while the Boddifords were in the saleswoman’s office. Thereafter, the Boddifords went into Hafer’s office where he identified each of a stack of documents related to the sale. Copies were given to the Boddifords who, without reading them, signed these documents. Included was a fully completed Sales Contract, reflecting all credit terms and showing Savannah Bank & Trust Company and Budget as creditors. By this point, Budget had run a preliminary credit check on the Boddifords, which was positive.

The Sales Contract stated on the front that buyers acknowledged that the Agreement “may be assigned by us [Budget] to Savannah Bank & Trust Company. . . .” The back of the Contract contained a form “Assignment” for this purpose. The Contract and the Assignment to the Bank were signed by Hafer. A separate document, the Delivery Receipt, was dated and signed by Mr. Boddiford. It stated it was part of “the buyer’s order,... or retail installment contract” and provided that if “seller is unable to assign this contract within_ days of the date hereof, this contract shall be null and void and buyer, immediately upon notice by seller, shall do one of the following: 1. purchase the vehicle from seller for the cash price thereof set forth herein, or 2. return the vehicle described herein to seller and pay . . . the cost of repair of any damage occurring to the vehicle

The Agreement also contained a clause stating that it “contains the full, final and exclusive statement of the agreement between you and us regarding this conditional sale, and no other promises, agreements or representations regarding this transaction shall be binding upon us unless set forth in this Agreement.”

The Boddifords signed over the title to the VW and left with the Grand Am. On Saturday evening, all of the credit figures were sent by a fax machine to the bank. Early Monday morning the bank reviewed the Boddifords’ credit and telephoned Budget to tell them it was approved, thereby accepting assignment of the Retail Sales Contract pursuant to the financing agreement then in force between Budget and the bank.

After getting home and reading the documents sometime during the weekend, the Boddifords decided they did not want to purchase the car. On Monday morning, after the bank had acted, they so advised the bank and went back to the dealer, returning the Grand Am and attempting to revoke the contract. Mrs. Boddiford also stopped payment on the $500 check.

The basis for the trial court’s order was the conclusion that, pursuant to the Buyer’s Offer and Purchase Option Contract, no approval in writing was made by the bank and conveyed to Budget as well as to the Boddifords, so that no contract came into being.

1. What the situation might have been if only the Buyer’s Offer and Purchase Option had been signed is not before us, nor was it before the trial court. See Frey v. Friendly Motors, 129 Ga. App. 636 (200 SE2d 467) (1973). The Boddifords and Budget had taken the next step, entering into the Retail Sales Contract which contained not only the price term which had been set out in the Offer, but the financing terms and all other conditions and terms of the contract. The Offer, upon execution of the Contract, was subsumed in it, as reflected in the plain language of the Contract. OCGA §§ 11-2-204; 13-3-1; 13-3-2; 13-2-2 (2); see Delta Chevrolet v. Wells, 187 Ga. App. 694, 695 (1) (371 SE2d 250) (1988). Thus the contingencies enumerated in the offer became irrelevant. The seller, not the buyer, had arranged financing and signed the assignment to its bank.

This does not resolve the issue, however, because there was a condition contained in the Contract, that if the seller was unable to assign the contract, it would become null and void.

“Conditions may be precedent or subsequent. A condition precedent must be performed before the contract becomes absolute and obligatory upon the other party. . . .” OCGA § 13-3-4; see First Nat. Bank &c. v. Nat. Bank of Ga., 249 Ga. 216, 218 (290 SE2d 55) (1982); Douglas v. Langford, 206 Ga. 864, 870 (59 SE2d 386) (1950); Crowe, Carter & Assoc. v. Hyde, 163 Ga. App. 816, 818 (295 SE2d 353) (1982).

The only condition in the Contract was fulfilled on Monday morning when the bank notified Budget that it would accept assignment of the Retail Sales Contract and so step into the shoes of the seller. That was all that was required, since there was no requirement in the Contract and Assignment that such notice be in writing or conveyed to the buyers before it became effective. First Nat. Bank, supra; see Brown v. Morris Real Estate Consultants, 256 Ga. 269, 270 (1) (347 SE2d 563) (1986); Panfel v. Boyd, 186 Ga. App. 214, 220 (3) (367 SE2d 54) (1988); Maine v. Strange, 138 Ga. App. 24, 25 (225 SE2d 484) (1976). The Boddifords’ desire that the bank not approve their credit and accept the assignment had no legal effect. They were not parties to the assignment agreement, so even if the assignment had been accepted after the Boddifords’ visit to the bank, the result would be the same.

Thus, summary judgment was improperly granted to the Boddifords and denied to Budget on its claim for $500.

2. As to the conversion claim concerning the VW given in trade for the Grand Am, the same rationale applies.

The court is directed to enter judgment for Budget on its claim and on the counterclaim of the defendants.

Judgment reversed and case remanded with direction.

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

Decided November 4, 1988 —

Rehearing denied November 18, 1988

Kent & Barrow, A. Mark Lee, for appellant.

Abbott, Talley & Abbott, Laurie K. Abbott, Anthony H. Abbott, James B. Talley, for appellees.


author: Pope, Judge.

text:
    77010.
    SAVANNAH INDUSTRIAL CONSTRUCTORS & EQUIPMENT RENTAL, INC. v. SUMNER.
    (375 SE2d 486)
   Pope, Judge.

Appellee brought suit against appellant, alleging that pursuant to a contract between the parties appellant owed him the sum of $13,000. After a non-jury trial, the trial court entered judgment in favor of appellee in the amount of $6,000 plus $300 pre-judgment interest, from which this appeal is taken.

The trial court found from the evidence submitted that the parties contracted for appellant to construct a building addition on business property owned by appellee for a price of $8,043. The contract, drafted by appellant, specified that payments were to be made in installments after the owner had inspected and approved each stage of the construction. Prior to making the final payment appellee expressed reservations about the roof construction and required appellant to sign a written acknowledgment that problems might exist. Appellant promised to “gladly” fix any leak problems that might become apparent later, and appellee made the final payment on the full contract price. Leaks were subsequently noticed and continued, although appellant attempted to repair the roof, damaging insulation and ceiling material in the building.

The trial court further found that the construction of the building was not performed in a workmanlike manner, but that it was constructed in a negligent manner; that photographs in evidence showed appellant’s efforts to be “sloppy, inattentive and perhaps incompetent”; and that a substantial part of the work would have to be changed and non-negligently rebuilt in order to comply with the contract. If the addition had been properly constructed, the entire building would have been worth $13,000 when completed, but because of the negligent construction it was worth considerably less. The evidence showed that the cost to rebuild to acceptable standards would be from at least $2,400 to as much as $9,600 or more. Based on all the evidence, the court found that the building, with the addition “as built,” was worth $7,000, damaging appellee in the amount of $6,000, and that he did not “accept” the completed building so as to waive the defects in appellant’s performance.

The trial court concluded as a matter of law (1) that appellee was entitled to sue for breach of contract for defects discovered and undiscovered after final payment because of appellant’s express promise to remedy the roof defects; (2) that although the complaint sounded only in contract, appellee presented evidence at trial to substantiate a claim of negligent construction as well as breach of contract, and because there was no pretrial order the pleadings were automatically amended to conform with the evidence; and (3) thus appellant’s counterclaim pursuant to Yost v. Torok, 256 Ga. 92 (344 SE2d 414) (1986) was validly pleaded, but defeated by the judgment in appellee’s favor. On appeal of this judgment appellant contends that since the evidence showed a valid acceptance by appellee, he was precluded from suing and recovering a judgment; and that there was no proof to substantiate the award of damages because the evidence submitted was too speculative and indeterminate to establish an amount. Held:

The record is replete with evidence of appellant’s mistakes and inefficiences in building the addition to appellee’s property, as well as appellee’s struggles to rectify the problems created thereby. “Under these facts, [appellee] was entitled to some relief. Payment alone does not, as a matter of law, constitute acceptance of performance under a building contract, amounting to a waiver of undiscovered defects in such performance. [Cit.] . . . Where the builder has promised to remedy defects as a result of his workmanship actually known to the owner and pointed out to the builder, acceptance of the work by the owner and payment therefor in reliance upon the builder’s promise to remedy the defects does not amount to a waiver of performance with regard to the known defects or to the defects subsequently discovered. [Cits.] [Appellee] was entitled to have what he contracted for or its equivalent, and what that equivalent is depends upon the circumstances of the case. Where a substantial part of the work would have to be changed and rebuilt in order for the work to be done according to the contract, the owner would be entitled to recover the difference between the value of the work as done and the value of the work as it should have been done, provided that the builder acted in good faith. [Cits.]” (Indention omitted.) McKee v. Wheelus, 85 Ga. App. 525, 528 (69 SE2d 788) (1952).

“[T]he acceptable method of computing damages where an express contract is alleged to have been breached by a building contractor is the difference in the fair market value of the [building] as completed and the value of the [building] as it would have been had it been completed in accordance with the contract.” Hortman v. Cantrell, 173 Ga. App. 429, 430 (1) (326 SE2d 779) (1985). Accord Jim Walter Homes v. Strickland, 185 Ga. App. 306, 310 (363 SE2d 834) (1987). That method was properly utilized by the trial court here in arriving at the amount of damages awarded. “The evidence in this case may not show the damages to a certainty, but the ability to ‘estimate damages to a reasonable certainty’ is all that is required [cit.], and mere difficulty in fixing the exact amount will not be an obstacle to the award.” Pottinger v. Cross, 170 Ga. App. 647, 648 (1) (317 SE2d 850) (1984). Accord Flo-Mor, Inc. v. Birmingham, 176 Ga. App. 375 (2) (336 SE2d 264) (1985). We find no grounds for reversal.

Decided November 7, 1988 —

Rehearing denied November 18, 1988.

John R. Calhoun, for appellant.

Spencer Connerat, Jr., for appellee.

Judgment affirmed.

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


text:
    77023.
    THAYER v. THE STATE. HALL v. THE STATE.
    77024.
    (375 SE2d 460)
   Beasley, Judge.

Defendants, husband and wife, appeal their convictions on nine counts of violations of the Georgia Securities Act, OCGA § 10-5-12. Four counts involved violations of OCGA § 10-5-12 (a) (1) where in a series of transactions involving instruments constituting securities within the meaning of the law, defendants failed to comply with the registration statement requirements of OCGA § 10-5-5 as to securities which were not exempt under OCGA §§ 10-5-8 or 9. The fifth count involved defendant Thayer not being registered as a dealer or salesman under OCGA § 10-5-3. The remaining four counts concerned violations of OCGA § 10-5-12 (d) (1) under which it is unlawful for any person in connection with the offer, sale or purchase of any security, directly or indirectly, to employ any device, scheme or artifice to defraud.

There are fifteen enumerations of error which may be broken down into six basic grounds. 1. There was no venue in Fayette County [enumerations of error one through five]. 2. The court erred in denying defendants’ motion for change of venue based upon unfavorable pre-trial publicity [enumerations of error six and seven]. 3. The court erred in failing to sequester a witness for the State and in not requiring him to testify first [enumerations of error eight through ten]. 4. The district attorney was erroneously allowed to make prejudicial remarks, ask leading questions and bolster the testimony of the State’s witnesses [enumerations of error eleven through thirteen]. 5. A witness for the state was erroneously permitted, over objection, to testify that in his opinion venue was proper in Fayette County [enumeration of error fourteen]. 6. Defendants were deprived of due process of law in that they were denied the right to a timely appeal [enumeration of error fifteen].

1. Because lack of venue would result in reversal of these appeals and an end of any proceedings in Fayette County, this is the first issue on our agenda. Prior to trial and by motion for directed verdict during trial, defendants sought dismissal on the ground that venue did not lie in Fayette County because neither of them had been in Fayette County and there was no basis for jurisdiction there. These motions were overruled.

“The proof of venue is an essential element in proving guilt in a criminal case.” Bush v. Chappell, 225 Ga. 659, 660 (171 SE2d 128) (1969). Accord Newsom v. State, 183 Ga. App. 339 (1) (359 SE2d 11) (1987). “[L]ike every other material allegation in the indictment it must be proved beyond a reasonable doubt.” Royster v. State, 108 Ga. App. 269, 270 (1) (132 SE2d 830) (1963); Dickerson v. State, 186 Ga. 557, 559 (2) (199 SE 142) (1938). “Where venue is not established by the [S]tate, any ensuing judgment is void, although reversal of a conviction on this basis does not prevent retrial in a court where venue is proper and proven.” Trogdon v. State, 176 Ga. App. 246, 247 (1) (335 SE2d 481) (1985).

OCGA § 10-5-15 specifies venue for violations of the Georgia Securities Act of 1973 (OCGA Ch. 10-5): “For the purposes of venue for any . . . criminal action under this chapter, any violation of this chapter . . . shall be considered to have been committed in any county in which any act was performed in furtherance of the transaction which violated the chapter.”

The defendants were never personally in Fayette County and the question is whether they performed any act in furtherance of the various illegal transactions with which they were charged in Fayette County. “An act is defined as ‘that which is done or doing; the exercise of power or the effect of which power exerted is the cause; a performance; a deed.’ Webster. ‘Something done or established.’ Bouvier.” Green v. State, 109 Ga. 536, 540 (1) (35 SE 97) (1899).

The victim Dobozy’s contact with defendants was initiated when he received in the mail a Clayton County newspaper which contained an advertisement for C & S Venture Capital. He called the telephone number listed in the advertisement, left a message and was subsequently called back by Charles Thayer who identified himself as Charles Hall. Several conversations ensued and in response to Dobozy’s inquiries a letter was sent to him in Fayette County by way of Federal Express. The letter written by Charles Hall contained information purporting to describe the history and manner of operation of C & S, but in fact most of the material was either false or misleading. Dobozy decided to invest and delivered $2,500 in Cobb County where the C & S office was located. He received by Federal Express a certificate of deposit evidencing his investment. Dobozy received numerous telephone calls in Fayette County from Charles Hall which resulted in his investing money in various other opportunities, including an investment contract consisting of an interest in rights to a fishing lure patent, a short-term note which was supposed to yield $2,000 profit in fifteen days and an investment contract for $10,000 in a house-moving project which promised a return of $25,000. All the face-to-face encounters occurred in Cobb County or locations other than Fayette County. Even after defendant Thayer was arrested, Dobozy received a Western Union Mailgram in Fayette County from “Charles” which stated although he was “tied up for 30 days,” he would send “both agreements on our business.”

The State contends that, by placing the advertisements in the newspaper soliciting business which was received by Dobozy in Fayette County, by numerous telephone calls to Dobozy’s home which sought to, and did, obtain money from him, and by sending the letter with information and the purported certificate of deposit to Dobozy, defendants performed acts in furtherance of the transactions as described in OCGA § 10-5-15. Georgia authority supports this very liberal and far-reaching construction of the term “act.”

Rose v. State, 4 Ga. App. 588, 598 (2) & 599 (3) (62 SE 117) (1908) [disapproved by R.M. Rose Co. v. State, 133 Ga. 353 (65 SE 770) (1909), on the basis of the Commerce Clause of the Federal Constitution, not the grounds here discussed], held that, with regard to a letter soliciting the sale of liquor, venue lay where the letter was delivered and received. Analogy was offered as to one standing in one jurisdiction and shooting a person in another jurisdiction, venue being properly found where the bullet took effect; the same result would follow from the mailing of a letter containing poison. The court also relied upon cases from other states and jurisdictions in which the crime was punishable where the letter was received: a threatening letter, or one based upon false pretense or fraudulent representation or in the case where a postmaster was mailed a letter soliciting him to violate his official duty.

In Carter v. State, 143 Ga. 632, 639 (3) (85 SE 884) (1915), venue was found to be in the county where a telegram was received. The court held the telegraph company was the sender’s agent, that the company’s delivery was his and he was constructively present with his agent in its delivery. The court reasoned that when an absent party procures something to be done within the limits of a particular jurisdiction he is amenable to its jurisdiction because of his “act by procuration.”

Both of these cases were cited in Overcash v. State, 111 Ga. App. 549, 550 (2) (142 SE2d 306) (1965), when this court declared that venue lay in the county where an obscene telephone call was received. They were also relied upon in Bowler v. State, 145 Ga. App. 633, 635 (2) (244 SE2d 142) (1978), a securities violation case involving the Act of 1957. Bowler contended that there was no venue in DeKalb County because he never went there or sent an agent to the county. Noting that part of the scheme to defraud was to mail the offering circular and an application to prospective customers and, after receiving payment, to mail the certificate to the purchaser, it was held that “venue of a crime committed by mail is at the point where the matter transmitted by mail is delivered and takes effect.” The court further observed: “the essence of the offense was the communication to prospective customers of representations known to appellant to be false. When the representations were communicated to persons in DeKalb County, the scheme to defraud was then and there employed.” Id. at 636.

Predicated on the reasoning of the above cases, defendants did deliberately perform acts which they intended to have effect in Fayette County, in furtherance of the transactions with which they were charged there. The victimization occurred there. The various acts of communication were incomplete in the statutory sense, until they took effect when they were received. Defendants utilized the communication facilities as their agents, activating them for delivery of the messages. Thus the Halls were constructively present in the county as described in Carter, supra. They cannot complain that the protection of the venue statute was not afforded, Platt v. Minn. Mining &c. Co., 376 U. S. 240, 245 (84 SC 769, 11 LE2d 674) (1964), for they chose to act in such a manner that their acts would reach fruition in Fayette County. Thus, there was evidence to sustain venue in Fayette County.

2. Prior to trial defendants filed a motion for change of venue based upon unfavorable and prejudicial pretrial publicity foreclosing a fair and impartial jury. The motion was denied after an unrecorded hearing. Defendants contend that the hearing was premature and the failure to make a voir dire record showed that trial counsel was ineffective. This is not shown by the record.

A change of venue under OCGA § 17-7-150 is within the trial court’s discretion which is conclusive absent abuse. Baker v. State, 245 Ga. 657, 659 (2) (266 SE2d 477) (1980). Defendants having failed to establish that an impartial jury could not be obtained in the county, there is no basis for reversal. Miller v. State, 141 Ga. App. 382, 383 (2) (233 SE2d 460) (1977).

3. At the beginning of trial neither side made a request for sequestration of the witnesses. The State then asked the trial court if the investigating officer could remain in the courtroom since he was needed to assist the prosecuting attorney and also related that the officer would probably be the second or third witness. He asked that the detective be permitted to testify following other witnesses because his involvement came as an investigator and only after the alleged offenses occurred. Defendants objected stating “he should be sequestered along with the other witnesses.” The trial court permitted the officer to remain and informed the State’s attorney that “you can call him in whatever order that you’d like to call him.” The victim and two other witnesses testified first, and the detective testified last. The motion for mistrial by defendants on the same ground was overruled.

OCGA § 24-9-61 provides for sequestration of witnesses upon motion by a party, but the trial court has sound discretion to make exceptions to that rule, and only abuse will warrant reversal. Disby v. State, 238 Ga. 178 (1) (231 SE2d 763) (1977). Although it is better to call that witness first so as to obviate the issue, we find no abuse in this case. The State, of course, takes the risk that the witness’ credibility will be affected. See Pippins v. State, 224 Ga. 462, 464 (162 SE2d 338) (1968).

In McNeal v. State, 228 Ga. 633, 637 (4) (187 SE2d 271) (1972), defendant excepted to the trial court’s permitting a detective witness for the State to remain in the courtroom, after the invocation of the sequestration rule, and in refusing to direct that he be called as the State’s first witness. The Supreme Court noted, in holding that there was no abuse: “The State’s attorney stated that it was necessary for the proper presentation of the evidence that [the detective], who investigated the case, remain in the courtroom and assist in the case.” No error was found in not requiring that he testify first. Accord Norman v. State, 255 Ga. 313, 316 (3) (338 SE2d 249) (1985); Welch v. State, 251 Ga. 197, 201 (7) (304 SE2d 391) (1983); Disby, supra; Fountain v. State, 228 Ga. 306, 307 (3) (185 SE2d 62) (1971). This case joins those.

4. Defendants contend that certain statements and questions posed by the prosecutor, none of which were made during argument to the jury but during examination of witnesses, constituted statements of prejudicial matters not in evidence, forbidden by OCGA § 17-8-75. Because the Code section applies where a prejudicial remark has been made in the form of a question, Castell v. State, 250 Ga. 776, 789 (301 SE2d 234) (1983), and Hamilton v. State, 155 Ga. App. 799, 800 (2) (272 SE2d 763) (1980), we examine each instance in its context.

Two of the questions by the prosecutor were objected to on the ground that they were leading. Objection was offered on the ground that the State was testifying, when the prosecutor attempted to state in his place a fact in order to clarify the circumstances concerning the introduction of a document to which objection had been interposed.

Another statement was made while the prosecutor was replying to another objection and recited what he was trying to establish. There were no objections to other statements contended to be prejudicial so they are not at issue. Morris v. State, 200 Ga. 471, 480 (37 SE2d 345) (1946).

It is not improper to state what one intends to prove and to argue reasons for admission. York v. State, 42 Ga. App. 453, 456 (15) (156 SE 733) (1930); Corbitt v. State, 7 Ga. App. 13 (5) (66 SE 152) (1909). Objections different from grounds urged on appeal will not be considered. Kingston v. State, 127 Ga. App. 660, 661 (2) (194 SE2d 675) (1972). Besides, none of the questions or colloquoy amounted to statements of prejudicial matter.

5. A witness recited that he suggested to the victim that he bring charges in Fayette County because the victim was a resident of that county and the initial solicitation or offer of the original investment occurred there. Defendants objected because “he’s trying to conclude a — facts before this jury. Whether that was an offer, whether that was an advertisement or what, is a question of venue.”

The advice given and the explanation of the reasons the suggestion was made were not a legal conclusion, as defendants urge.

6. Defendants fail to show that they were deprived of due process of law under the federal constitution because of appellate delay. Graham v. State, 171 Ga. App. 242, 249 (7) (319 SE2d 484) (1984). Compare 1983 Ga. Const., Art. VI, Sec. IX, Par. I. The fifteen-month period between conviction and filing of the transcript is their targeted period. Appellants also mention the one-year lapse between the conviction and the withdrawal of original appellate counsel. The harm, they claim, was “unnecessary incarceration.” Although the transcript was in fact long overdue, OCGA § 5-6-42, there is nothing to indicate that the appellants fulfilled their obligation for a timely filing. They did not even comply with the requirement that they seek an extension. OCGA § 5-6-39. The delay lies at their doorsteps and was lengthened by obtaining an extension for filing the enumeration of errors and brief in this court.

7. Defendant Susan Hall was not charged in Count Five and her conviction and sentence under that count are utterly void. The judgment in 77024 must be reversed in part with direction that her sentence under Count Five be set aside.

Judgment affirmed in 77023; judgment affirmed in part and reversed in part with direction in 77024.

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

On Motion for Rehearing.

Movants have cited no new authority and furnish no new basis for overturning our decision. With regard to the contention that we overlooked two cases previously cited in briefs to this court, the following observations are pertinent. A decision by a federal circuit court is not binding but may be persuasive; however, it has no efficacy if it contravenes our appellate decisions. Concerning Whitfield v. State, 143 Ga. App. 779 (240 SE2d 189) (1977), insofar as it conflicts with decisions of the Georgia Supreme Court it must yield to them. 1983 Ga. Const., Art. VI, Sec. VI, Par. VI.

Decided November 1, 1988 —

Rehearing denied November 18, 1988

Janet G. Scott, Michelle G. Lundy, for appellants.

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

Motion for rehearing denied.


text:
    77072.
    GLEN RESTAURANTS, INC. v. BUILDING 5 ASSOCIATES, LTD.
    (375 SE2d 492)
   Pope, Judge.

After a bench trial, a money judgment was entered in favor of appellee Building 5 Associates, Limited. Appellant Glen Restaurants, Inc., filed a timely notice of appeal on March 30, 1987. The record indicates that, on or about the same date, appellant’s counsel ordered a transcript of the proceedings from the court reporter by telephone. However, the transcript was not filed within the requisite thirty-day period and appellant did not request an extension of time for filing the transcript. On June 16, 1987, appellee filed a motion to dismiss the appeal. After appellant responded by filing affidavits and a brief, the trial court dismissed the appeal. Glen Restaurants appeals the order dismissing its notice of appeal from the judgment.

1. We have examined the record and find no factual errors recited in the order of dismissal.

2. The trial court may dismiss an appeal for delay in filing the transcript of the record on appeal only upon a finding that the delay was unreasonable and inexcusable. Young v. Climatrol Southeast Distrib. Corp., 237 Ga. 53 (226 SE2d 737) (1976). The trial court’s decision on the issue of the unreasonable and inexcusable nature of the delay will be reversed only for abuse of discretion. DuBois v. DuBois, 240 Ga. 314 (1) (240 SE2d 706) (1977).

The record shows the transcript in this case has not yet been prepared due to a backlog in the court reporter’s business. However, the record also supports the trial court’s finding that appellant made no effort to discover the transcript would not be timely filed so that a timely application for extension of time to file the transcript could be ' made. While it may not be the fault of the appellant that the transcript was not filed, it was the duty of the appellant to seek an extension of the period for filing the transcript before the period expired. See OCGA §§ 5-6-39 and 42. “[T]he fact that the initial delay in the preparation of the transcript may not have been the fault of the defendant does not excuse the filing delay, in the absence of a proper request by the defendant for an extension of time.” Dampier v. First Bank &c. Co., 153 Ga. App. 756, 757 (266 SE2d 539) (1980); see also In re G. W. H., 168 Ga. App. 845 (310 SE2d 573) (1983).

Failure of the appellant to request an extension for the filing of the transcript is not in itself a ground for dismissal of the appeal absent a judicial determination that the resulting delay was both unreasonable and inexcusable. Young v. Jones, 147 Ga. App. 65 (2) (248 SE2d 49) (1978). In this case the dismissal was supported by a finding that the delay was unreasonable and inexcusable. Given the four-month delay in filing the transcript and appellant’s apparent lack of diligence in discovering that the transcript would be delayed, we find no abuse of the trial court’s discretion in finding the delay to be unreasonable and inexcusable. Cf. Wagner v. Howell, 257 Ga. 801 (363 SE2d 759) (1988) (where a six-day delay in filing the transcript because the court reporter forgot to file it did not affirmatively appear to be caused by the appellant).

3. The trial court may dismiss an appeal on the grounds set forth in OCGA § 5-6-48 (c) “after notice and opportunity for hearing . . . .” Appellant argues the order dismissing its appeal should be reversed because it was issued without an oral hearing on the motion.

Pursuant to Rule 6.3 of the Uniform Superior Court Rules, with certain specified exceptions, all motions “shall be decided . . . without oral hearing” unless oral argument is requested in writing. A motion to dismiss an appeal is not within the specified exceptions to this rule. Nevertheless, appellant argues that Rule 6.3 is in conflict with the requirement of an “opportunity for hearing” set forth in OCGA § 5-6-48 (c). As this court has held in regard to a hearing on a motion for summary judgment, referred to in OCGA § 9-11-56 (c), all that is . required is the opportunity to respond. Brown v. Shiver, 183 Ga. App. 207 (2) (358 SE2d 862) (1987); Dallas Blue Haven Pools v. Taslimi, 180 Ga. App. 734 (1) (350 SE2d 265) (1986), aff’d, 256 Ga. 739 (354 SE2d 160) (1987). The Georgia Supreme Court found no conflict between the reference to a hearing on a motion for summary judgment in OCGA § 9-11-56 (c) and Rule 6.3. Kelley v. First Franklin Fin. Corp., 256 Ga. 622 (351 SE2d 443) (1987). Likewise, we find no conflict between the “opportunity for hearing” on a motion to dismiss, as set forth in OCGA § 5-6-48 (c), and Rule 6.3. The record in this case shows appellant was afforded a full opportunity to respond to its opponent’s motion to dismiss. Therefore, the court did not err in granting the motion to dismiss without an oral hearing.

Decided November 8, 1988 —

Rehearing denied November 18, 1988

Fine & Block, A. J. Block, Jr., Gary M. Goldsmith, for appellant.

Sutherland, Asbill & Brennan, Alfred A. Lindseth, Elizabeth C. Boswell, for appellee.

Judgment affirmed.

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


text:
    77094.
    NEWSOME v. THE STATE.
    (375 SE2d 621)
   Beasley, Judge.

Defendant appeals his conviction of two counts of child molestation, OCGA § 16-6-4 (a). He enumerates as error: 1) the trial court allowing, over objection, the alternate juror to retire with the jury and be present during deliberations; 2) the admission of defendant’s statements to police in evidence against him when the statements were obtained in violation of OCGA § 24-3-50 and the Fifth and Fourteenth Amendments to the United States Constitution; 3) the court’s ruling that OCGA § 17-7-210 did not apply to defendant’s statements because they were non-custodial.

1. The trial court sent the alternate juror out with the rest of the jury and admonished him not to participate in the deliberations. Counsel for defendant objected to this procedure. After defendant’s conviction and appeal, the State sought to supplement the record by introducing the affidavits of the jurors that they were not influenced in any way by the alternate juror’s presence. After a hearing the trial court entered an order permitting the record to be supplemented by the affidavits.

OCGA § 15-12-171 provides in part: “Upon final submission of the case to the jury, the alternate jurors shall not retire with the jury of 12 for deliberation.” Johnson v. State, 235 Ga. 486, 493 (6) (220 SE2d 448) (1975), held: “The alternate juror, when he entered the jury room at the time the jury began to deliberate, became, like any third party, a stranger to the jury. . . . Whenever such jury misconduct is shown, a presumption of injury to the defendant is raised, which the [S]tate must overcome by a showing of harmlessness.”

The State carries its burden when it produces the affidavits of the twelve members of the jury that their decision was not influenced at all by the alternate juror’s presence. Weaver v. State, 170 Ga. App. 731, 733 (6) (318 SE2d 196) (1984). Ten of the jurors so stated in their affidavits. However, one juror merely stated that “I do not recall whether or not the alternate juror was present during jury deliberations.” Another stated: “I don’t think the alternate juror was present during jury deliberations.” Neither juror could or did confirm that her decision was not affected by the alternate’s presence. There was no post-verdict poll which might have resolved the factual question. Because the State has the burden, the failure to show unanimity as to lack of any influence was fatal. Bullock v. State, 150 Ga. App. 824, 825 (2) (258 SE2d 610) (1979). Compare Johnson, supra; Weaver v. State, supra. The sanctity of the jury process is too vital to permit departure from the prescribed mode except where the total absence of harm can be clearly demonstrated. A new trial must be granted on this ground.

2. An officer who interviewed the defendant made some extensive comments to him which defendant now contends amounted to the offer of “hope of benefit” as forbidden by OCGA § 24-3-50 and by the Fifth and Fourteenth Amendments to the United States Constitution. The officer explained that she made the statements to defendant, after reading him his rights (Miranda v. Arizona, 384 U. S. 436 (86 SC 1602, 16 LE2d 694) (1966)), in an effort to show what punishment might befall him under the Code, in order that he would understand the seriousness of the charges against him, and to demonstrate what would be the result if the two alleged victims’ statements were provided to the district attorney without any contradiction.

“To make a confession admissible, it must have been made voluntarily, without being induced by another by the slightest hope of benefit or remotest fear of injury.” OCGA § 24-3-50. The “hope of benefit” contemplated by this section must be induced by another. Dickey v. State, 157 Ga. App. 13, 14 (1) (276 SE2d 75) (1981). A hope or fear which originates from the mind of the person confessing and which germinates “from seeds of his own planting would not exclude a confession.” Hall v. State, 180 Ga. App. 366, 367 (1) (349 SE2d 255) (1986). A hope for lighter punishment is usually the hope of benefit to which the code refers. Presnell v. State, 241 Ga. 49, 55 (5) (243 SE2d 496) (1978) [reversed as to sentence only, Presnell v. Georgia, 439 U. S. 14 (99 SC 235, 58 LE2d 207) (1978)].

The language used by the officer was taped and we have reviewed it, insofar as it is in the record, in the context in which it was used. It did not constitute the hope of benefit within the contemplation of the Code. Defendant was advised of the charges and the possible consequences of conviction and was given the opportunity to tell his version of what actually happened. It more closely relates to offers of help, Cooper v. State, 256 Ga. 234, 235 (2) (347 SE2d 553) (1986), and Head v. State, 180 Ga. App. 901 (1) (350 SE2d 854) (1986); a statement that it is always better to tell the truth, Kettman v. State, 257 Ga. 603, 607 (10) (362 SE2d 342) (1987), and Caffo v. State, 247 Ga. 751, 755 (3) (279 SE2d 678) (1981); a statement that cooperation would be noted, Moore v. State, 179 Ga. App. 488, 489 (2) (347 SE2d 318) (1986), Rounds v. State, 166 Ga. App. 212, 213 (2) (303 SE2d 543) (1983), and Stephens v. State, 164 Ga. App. 398, 399 (4) (297 SE2d 90) (1982); a promise to keep defendant out of a certain prison, Patrick v. State, 169 Ga. App. 302 (1) (312 SE2d 385) (1983).

Decided October 31, 1988 —

Rehearing denied November 18, 1988

Frank G. Smith, August F. Siemon III, for appellant.

Thomas J. Charron, District Attorney, Debra H. Bernes, Nancy I. Jordan, Assistant District Attorneys, for appellee.

“When a trial judge has made a determination as to the voluntariness of a confession after a suppression hearing, such determination must be accepted by the appellate courts unless his decision is clearly erroneous.” Gibbs v. State, 235 Ga. 480, 483 (3) (220 SE2d 254) (1975). There was no violation of our statute and, because it is not less protective of individual rights than the Federal Constitution, no federal constitutional infirmity. Young v. State, 243 Ga. 546, 548 (3) (255 SE2d 20) (1979).

3. Because a new trial has been granted, the remaining enumeration of error will be an issue only if defendant objects to failure to obtain a copy of his statement prior to re-trial. Compare Tanner v. State, 160 Ga. App. 266, 268 (1) (287 SE2d 268) (1981). Thus, it need not be addressed. However, it is noted that only a custodial statement is required to be supplied pursuant to OCGA § 17-7-210, Johnson v. State, 177 Ga. App. 705 (340 SE2d 662) (1986), and an accused is not in custody when he is out on bond. Martin v. State, 179 Ga. App. 551, 553 (5) (347 SE2d 247) (1986).

Judgment reversed.

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


text:
    77082.
    SEXTON v. THE STATE.
    (375 SE2d 661)
   Pope, Judge.

Appellant Sexton appeals his conviction for aggravated assault for which the court sentenced him to serve twenty years. The evidence at trial authorized the jury to find that appellant was stopped by store employees of N.T.’s, a convenience store, who suspected him of shoplifting. Upon learning that the police had been called and were on the way, appellant drew a small pocketknife and swung it several times at store employees as he backed out of the store. Appellant was arrested by the police outside the store.

1. The trial court did not err in refusing to excuse for cause a prospective juror who stated that appellant looked like a drunk driver who caused an accident at which she had rendered aid. She first said that this possibly would stay in the back of her mind. She stated to counsel that while she couldn’t say with absolute certainty that the suspicion that appellant had been the drunk driver would not enter her mind, she would like it not to enter. Upon questioning from the court, she agreed that she would try to be a fair and impartial juror.

“Whether to strike a juror for favor lies within the sound discretion of the trial court [cits.], and absent manifest abuse of that discretion, appellate courts will not reverse. [Cit.]” Harris v. State, 178 Ga. App. 735, 736 (344 SE2d 528) (1986). We find no abuse here. See also Romine v. State, 256 Ga. 521 (8) (350 SE2d 446) (1986); Waters v. State, 248 Ga. 355 (2) (283 SE2d 238) (1981). Bass v. State, 183 Ga. App. 349 (358 SE2d 837) (1987), cited by appellant as persuasive is clearly distinguishable. In Bass, the prospective juror had heard evidence at a preliminary hearing and had formed an opinion. That was not the situation here.

2. We also cannot agree that the trial court erred in refusing to strike the array of jurors who were present during the exchange between the prospective juror, counsel and the court regarding the drunk driver resemblance. This matter also lies within the discretion of the court and we find no abuse. Hughey v. State, 180 Ga. App. 375 (2) (348 SE2d 901) (1986); Pruitt v. State, 176 Ga. App. 317 (1) (335 SE2d 724) (1986).

3. Finally, appellant argues that the trial court erred in refusing to charge simple assault as a lesser included offense of aggravated assault. This argument rests on appellant’s contention that the jury could have found that the pocketknife used in the act could have been as short as one and a half inches and no longer than three inches and thus the jury could find that the knife was not a deadly weapon. However, the length of the knife is not the key factor in determining whether it constitutes a deadly weapon. “The knife in this case, though rather small and of a type suitable for carrying in the pocket, was arguably capable of inflicting the types of injuries which generally can be produced by knives, including death or great bodily injury. Whether or not the pocketknife in question constituted a deadly (or offensive) weapon was properly for-the jury’s determination. [Cits.]” Hambrick v. State, 174 Ga. App. 444, 445 (330 SE2d 383) (1985). See also Davis v. State, 184 Ga. App. 230 (1) (361 SE2d 229) (1987).

“Simple assault is not a lesser included offense of an aggravated assault in which a gun or a knife is alleged to have been used as a deadly weapon. [Cits.]” Weaver v. State, 182 Ga. App. 806 (357 SE2d 153) (1987). We find appellant’s argument to be without merit.

Decided November 18, 1988.

Linda B. Borsky, for appellant.

Thomas J. Charron, District Attorney, Debra H. Bernes, Assistant District Attorney, for appellee.

Judgment affirmed.

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


author: Banke, Presiding Judge.

text:
    77453.
    JOHNSON v. SHIELD INSURANCE COMPANY.
    (375 SE2d 510)
   Banke, Presiding Judge.

The appellant sued to recover for injuries sustained in an automobile accident. She subsequently caused the appellee, Shield Insurance Company, to be served with a second original of the complaint and summons on the theory that it was liable to her as her uninsured motorist insurance carrier. Shield sought and obtained summary judgment on the ground that such service had not been effected within the two-year limitation period applicable to the action. See generally OCGA § 9-3-33. This appeal followed. Held:

“In Vaughn v. Collum, 236 Ga. 582 (224 SE2d 416) (1976), the Supreme Court held that an uninsured motorist carrier is entitled to service within the time allowed for service on the defendant in the tort action. This court has since applied that holding to affirm summary judgments granted to insurers on whom service was not made within the period of limitation. (Cits.).” Williams v. Thomas, 183 Ga. App. 51, 52 (357 SE2d 872) (1987).

“Where service is made after the expiration of the applicable statute of limitation, the timely filing of the complaint tolls the statute only if ‘the plaintiff (shows) that he acted in a reasonable and diligent manner in attempting to insure that a proper service was made as quickly as possible.’ ” Forsyth v. Brazil, 169 Ga. App. 438 (313 SE2d 138) (1984), quoting from Childs v. Catlin, 134 Ga. App. 778, 781 (216 SE2d 360) (1975). See also Ingram v. Grose, 180 Ga. App. 647 (350 SE2d 289) (1986); Freemon v. Dubroca, 177 Ga. App. 745 (341 SE2d 276) (1986).

Although the appellant both filed the present action and obtained service on the alleged tortfeasor within the applicable limitation period, she did not request issuance of the second original until more than six weeks after the expiration of the limitation period. In her brief on appeal, she maintains that this delay was excusable because the appellee received a copy of the complaint almost immediately after it was filed, and its agents misled her to believe that service of that copy would be acknowledged accordingly. However, the record contains no evidence to support these assertions.

Decided November 18, 1988.

Douglas R. Daum, for appellant.

William P. Tinkler, Jr., for appellee.

“We cannot consider facts, related by briefs, which do not appear in the record sent up from the clerk of the lower court.” Garrison v. Dept. of Human Resources, 184 Ga. App. 449 (361 SE2d 860) (1987). Based upon the record before us, we hold that the trial court did not err in ruling that the appellee was entitled to summary judgment on the basis of its statute of limitation defense.

Judgment affirmed.

Birdsong, C. J., and Beasley, J., concur.


author: Benham, Judge.

text:
    76527.
    CHAMLEE v. DEPARTMENT OF TRANSPORTATION.
    (375 SE2d 626)
   Benham, Judge.

Appellant’s property was the subject of condemnation by the Department of Transportation, the action having been filed on September 7, 1986. Appellant petitioned to have the declaration of taking set aside, vacated, or annulled, and the Superior Court of Fulton County held an evidentiary hearing on the petition in April 1986. At the close of appellant’s evidence, the DOT moved to dismiss his petition, and the trial court granted the motion. Appellant appealed the trial court’s ruling, arguing that the court failed to make adequate findings of fact and conclusions of law. This court agreed, and remanded the case to the trial court for that purpose, stating that the losing party would have the right to appeal from the new judgment entered thereon. Chamlee v. Dept. of Transp., 182 Ga. App. 120 (354 SE2d 701) (1987). The trial court made the required findings and conclusions, and this appeal is the result.

1. Appellant complains that the trial court’s findings of fact that the declaration of taking was filed on July 7, 1984, and that the commissioner of the DOT ordered the property condemned on November 6, 1984, are clearly erroneous. While we agree that the first statement was inaccurate (the petition having been signed on July 7 but not filed until September 7) and that the second statement could have been more artfully drawn (as the trial court was no doubt referring to the power of the commissioner to order property condemned under OCGA § 32-3-6 and § 32-3-13 (a)), those inaccuracies have no bearing on the basis for appellant’s appeal and, therefore, do not constitute reversible error. The same treatment applies to appellant’s fourth enumeration of error, in which he points out another inaccuracy.

2. Appellant also contests what he considers an insufficient description of the property that was to be taken. He contends that the proposals from the DOT regarding the amount to be taken ranged from 320 square feet and two easements to .299 acres, the latter allegedly being all of appellant’s property, including a portion of Chestnut Street in which he claimed ownership. Appellant takes the position that the trial court’s findings of fact, which refer to the “property subject to condemnation,” do not specifically mention the interest the DOT actually acquired, and so the order is fatally defective. We find no such error. The record shows that the parties were uncertain whether appellant owned a portion of the Chestnut Street area that was subject to taking, and we find nothing in the record to show that appellant ever proved his ownership in that portion of the property. The amounts offered by the DOT in negotiating with appellant varied due to the DOT’s uncertainty that appellant held title to the property. These variations do not warrant a finding that the DOT was acting in bad faith in dealing with appellant, nor does the trial court’s characterizing the property as “property subject to condemnation” render the order deficient or fatally defective, since the title being sought by the DOT and that which was conveyed was in fee simple and excluded all easements. Compare Dorsey v. Dept. of Transp., 248 Ga. 34 (279 SE2d 707) (1981), cited by appellant, in which a temporary construction easement was sought, and thus a more detailed description of its nature and duration was required.

3. Appellant argues that the trial court erred in granting appellee’s motion for directed verdict, which was treated as a motion for involuntary dismissal under OCGA § 9-11-41 (b). We disagree. To begin with, appellant’s contention that the trial court was required to construe the evidence in his favor is incorrect. As stated in appellant’s case when it was previously before this court, “[ujnder Rule 41 (b), a trial judge in a non-jury case is expressly given the power to adjudicate the case on the merits at the conclusion of plaintiff’s case. ‘If the trial judge has the power of adjudication of the facts upon motion for involuntary dismissal in a non-jury case, he [or she] must weigh the evidence.’ [Cits.]” Chamlee, supra at 121. “There is no obligation in the statute that the judge in determining the facts must consider plaintiff’s evidence in a light most favorable to the plaintiff. Since the court determines the facts as well as the law, it necessarily follows that the motion may be sustained even though plaintiff may have established a prima facie case.” Pichulik v. Air Conditioning &c. Co., 123 Ga. App. 195, 197 (180 SE2d 286) (1971). After reviewing the record, we conclude that it supports the findings of fact and conclusions of law the trial court produced. As for appellant’s assertion that a number of the trial court’s findings are based on facts not introduced into evidence, we find it to be incorrect. The record supports every relevant statement in the trial court’s order. Moreover, whatever minor discrepancies exist have no meaningful effect on the conclusions of law the trial court reached.

4. Appellant’s contention that the trial court erred in stating that it had jurisdiction of the matter pursuant to OCGA § 32-3-4 is without merit. The trial court’s citation of that statute section as the basis of jurisdiction merely served to show it had the authority to preside over condemnation proceedings and related issues, including the issues appellant sought to raise. The fact that the trial court did not list every statute section that related to its authority with regard to condemnation actions has no effect on the actual authority with which the court was vested, and it certainly does not constitute reversible error.

5. In his seventh enumeration of error, appellant argues that the trial court erred in its statement that there is a “prima facie presumption that the property or interest condemned is taken for and is necessary to the public use,” the basis of his argument being that OCGA § 32-3-11 (c) requires the condemnor to “show cause . . . why the title acquired by the declaration of taking should not be vacated and set aside. . . .” We find no such error. The trial court correctly quoted from OCGA § 32-3-11 (a). Appellant’s reliance on that portion of subsection (c) of the statute is misplaced inasmuch as he has taken it out of context and has ignored the interpretation that “[although a rule nisi orders the respondent to show cause why certain action should not be taken, the burden of showing the necessity for taking such action is on the movant.” Herring v. Standard Guaranty Ins. Co., 238 Ga. 261, 262 (232 SE2d 544) (1977). Appellant had the burden of proof on the issues that he raised under OCGA § 32-3-11 (b); that burden was not shifted by the issuance of the rule nisi required by subsection (c), and in the absence of bad faith or abuse of discretion, the condemnor’s action must be affirmed. See City of Atlanta v. First Nat. Bank of Atlanta, 246 Ga. 424 (271 SE2d 821) (1980); West v. Dept. of Transp., 176 Ga. App. 806 (338 SE2d 45) (1985).

6. We also disagree with appellant’s contention that the trial court erred in “failing to find the condemnor’s actions required condemnee to seek inverse condemnation of the Chestnut Street property.” This argument has no merit. The issue in this phase of the case was whether the taking was in bad faith. The ownership of the Chestnut Street property is not at issue here, but will be at the valuation phase. Appellant can establish ownership and a taking there and be compensated for it at that point.

Decided November 3, 1988 —

Rehearing denied November 21, 1988

Richard N. Hubert, David J. Worley, for appellant.

Kenneth L. Levy, Michael J. Bowers, Attorney General, for appellee.

Judgment affirmed.

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


text:
    76733.
    PETERS v. IMPERIAL CABINET COMPANY, INC.
    (375 SE2d 635)
   Benham, Judge.

Appellee Imperial Cabinet Company filed suit against appellant Peters, contending that it had suffered damage as a result of Peters’ act of false swearing. A jury returned a verdict in favor of appellee, and appellant appeals from the judgment entered thereon.

Appellant maintains that, for a number of reasons, his motion for directed verdict should have been granted. The facts, presented in the light most favorable to the jury verdict, follow.

Appellant was the president and sole shareholder of AEC, a residential construction corporation. Appellee provided cabinetry for the homes AEC constructed. When appellee was not paid for cabinets installed in a certain home in July 1983, it filed a lien on the improved property on September 23, 1983. However, AEC sold the newly-constructed home to a third-party on September 14, 1983. At the closing, appellant executed an affidavit in which he swore that “no improvements or repairs have been made to the Property during the ninety-five (95) days immediately preceding this date for which the costs have not been fully paid, and there are no outstanding bills incurred for labor or materials used in making improvements or repairs to the Property, or for services of architects, surveyors or engineers incurred in connection therewith.” Appellant further swore that “[tjhere is no outstanding indebtedness for equipment, appliances or other fixtures attached to the Property. . . .” The closing attorney, qualified by the trial court as an expert on real estate transactions, testified that he went over the contents of the affidavit with appellant, explained to him that it was a statement given by appellant under oath, and was “careful to ask [appellant] if there were any other claims that had not been set forth on [the affidavit].” Appellant signed the affidavit, completed the sale of the improved real estate to a third-party, and received those proceeds not used to pay off secured lenders and lienholders. Appellee never received payment for the cabinetry, and a real estate expert opined that appellant’s execution of the affidavit foreclosed appellee from pursuing the new property owner for payment.

1. Appellant asserts he was entitled to a directed verdict because there is no civil cause of action for false swearing. While OCGA Title 51 does not contain a tort expressly called “false swearing,” OCGA § 51-1-6 provides that “[w]hen the law requires a person to perform an act for the benefit of another or to refrain from doing an act which may injure another, although no cause of action is given in express terms, the injured party may recover for the breach of such legal duty if he suffers damage thereby.” Appellee’s allegation that appellant knowingly swore falsely, thereby injuring appellee, set forth a cause of action for breach of the legal duty to swear truthfully. Cf. LaBarre v. Payne, 174 Ga. App. 32 (2) (329 SE2d 533) (1985). The existence of such a cause of action was recognized by this Court in Carl E. Jones Dev. Co. v. Wilson, 149 Ga. App. 679, 681 (255 SE2d 135) (1979). Although this court has been asked twice recently to ascertain the viability of a civil action for false swearing, it has not been necessary for the court to address the issue. See Benbow v. Wiggin, 173 Ga. App. 336 (326 SE2d 538) (1985) (in addition to alleging a private cause of action for violation of the criminal statute for false swearing, the complaint also stated a cognizable civil claim for the fraudulent transfer of corporate assets; therefore, judgment on the pleadings in favor of the defendant was inappropriate); Commercial Plastics &c. of Ga. v. Molen, 182 Ga. App. 202 (4) (355 SE2d 86) (1987) (the defendants were entitled to summary judgment in plaintiff’s civil action for false swearing since the alleged false swearing occurred during a judicial proceeding, making the false swearing perjury, for which there is no civil cause of action).

Appellant maintains there is no civil cause of action for false swearing, and cites several civil perjury cases in support of his theory. This court has agreed “with the overwhelming majority of authority from other jurisdictions” and held there is no civil cause of action for damages for perjury committed in an earlier lawsuit. Sun v. Bush, 179 Ga. App. 140 (3) (345 SE2d 873) (1986); Shepherd v. Epps, 179 Ga. App. 685 (1) (347 SE2d 289) (1986). This court enunciated sound reasons for its decisions against a civil cause of action for damages for perjury: public policy requires that witnesses have no restraint save the criminal sanction for perjury; litigation would be extended by reexamining issues; and the allegation of perjury amounts to an impermissible collateral attack on the earlier judgment. Id. None of these reasons, however, is applicable to false swearing, which, by its very definition, excludes from its coverage false swearing in judicial proceedings. Indeed, a civil action for false swearing does not involve witnesses from a prior judicial proceeding, does not re-examine previously-litigated issues, and is not a collateral attack on a judgment rendered earlier. Due to the distinction between perjury and false swearing, appellant’s reliance on perjury cases is misplaced.

2. Appellant next argues that his motion for directed verdict should have been granted because there was no evidence that appellant knowingly and wilfully swore falsely. False swearing occurs when “[a] person . . . who executes a document knowing that it purports to be an acknowledgment of a lawful oath or affirmation ... in any matter or thing other than a judicial proceeding . . . knowingly and wilfully makes a false statement.” OCGA § 16-10-71 (a). “Knowledge either express or implied is absolutely indispensable in order to impute a wilful purpose to swear falsely. [Cit.]” Carroll v. Morrison, 224 Ga. 277, 278 (161 SE2d 269) (1968). In the case at bar, appellant testified that, based on what his attorney had told him, he believed at the time of closing the dispute with appellee had been settled. Appellant’s former attorney testified that he had spoken with the now-deceased owner of appellee; that they had resolved the problem; and that he had informed appellant of the settlement. Appellee’s current owner (and the partner of the deceased owner) testified that any problems with the particular cabinets in question would have been directed to him since he had done the initial work; that he never heard any complaints from AEC, appellant, or the home’s current owner; that AEC stopped payment on the check sent to pay for the cabinetry; that his deceased partner would have consulted with him before writing off a $3,400 receivable; that there was no such consultation; and that there were no business records reflecting such a settlement. Appellee introduced into evidence the deceased partner’s affidavit which had been executed in support of appellee’s lien that was filed due to AEC’s failure to pay for the cabinetry, and impeached appellant’s former attorney.

Appellee presented evidence from which the jury could conclude that the dispute between AEC and appellee had, in fact, not been resolved, and that appellant’s former attorney had not been truthful when he told appellant that the dispute was settled. However, there was no evidence from which the jury could conclude that appellant knew, when he signed the affidavit, that the problem had not been solved. For false swearing to have occurred, there must be evidence of both the falsity of the swearing and the intent to swear falsely. Smith v. State, 66 Ga. App. 669, 670 (19 SE 168) (1942). See also Carroll v. Morrison, supra. Inasmuch as there was no evidence from which the jury could conclude that appellant knew when he signed the affidavit that the dispute with appellee had not been solved, there was no evidence that appellant knowingly swore falsely, and the trial court erred in failing to direct a verdict in favor of appellant.

3. In light of our holding in Division 2, we need not address appellant’s remaining enumerations of error.

Decided November 4, 1988 —

Rehearing denied November 21, 1988

David S. Walker, Jr., for appellant.

William T. Hudson, Jr., for appellee.

Judgment reversed.

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