author: Carley, Chief Judge. Beasley, Judge,

text:
    A90A0996.
    HILL v. THE STATE.
    (401 SE2d 48)
   Carley, Chief Judge.

Appellant was tried before a jury on two indictments, each of which charged him with commission of a theft. Although he was found guilty of both crimes, appellant appeals only from the judgment of conviction and sentence entered by the trial court on one of the jury’s guilty verdicts.

1. Appellant enumerates as error the denial of his motion for a directed verdict of acquittal..

Construed most favorably for the State, the evidence showed the following: Anwar Ali owned certain property which he wished to sell. After a purchaser was found who needed financing, Ali’s real estate agents introduced Ali to appellant. Appellant represented to Ali that, for a $2,500 fee, he would undertake to assist the purchaser in obtaining the necessary financing and that he would return the fee to Ali if he was not successful in doing so. Ali agreed to the terms and gave appellant $2,500 in cash at a meeting in Cobb County. Although appellant did attempt to arrange financing through a mortgage company, no loan was ever made. Ali requested the return of his $2,500 and appellant presented him with a check in that amount at a meeting in Clayton County. However, the check was not honored because of insufficient funds.

“The language embodied in the clause, ‘regardless of the manner in which said property is taken or appropriated, in [OCGA § 16-8-2], renders the section sufficiently broad to encompass thefts or larcenies perpetrated by deception as prohibited under [OCGA § 16-8-3], and theft by conversion, as prohibited under [OCGA § 16-8-4], the punishment for all of which is identical, as provided in [OCGA § 16-8-12].” Jones v. State, 137 Ga. App. 612, 613 (4) (224 SE2d 473) (1976). It is the State’s theory that the evidence set forth above authorized a finding that appellant committed a theft by conversion of Ali’s $2,500 in violation of OCGA § 16-8-4 (a). That statute provides, in relevant part, as follows: “A person commits the offense of theft by conversion when, having lawfully obtained funds ... of another . . . under an agreement or other known legal obligation to make a specified application of such funds . . ., he knowingly converts the funds ... to his own use in violation of the agreement or legal obligation.” (Emphasis supplied.)

Based upon a review of the record in this case, we conclude that the evidence will not authorize a finding that appellant obtained the $2,500 from Ali “under an agreement or other known legal obligation to make a specified application” thereof. Ali freely gave the $2,500 to appellant in return for appellant’s promise personally to provide certain future services. Compare Stull v. State, 230 Ga. 99, 102 (3) (196 SE2d 7) (1973). Ali gave no specific directions as to how the $2,500 was to be applied by appellant, Ali’s only interest after freely parting with the cash was in receiving the future services that appellant had agreed to perform on his behalf or in receiving a refund if those future services did not produce the desired result. This shows the existence of an enforceable contract, the breach of which would be civilly actionable. It does not show the existence of a violation of the criminal provisions of OCGA § 16-8-4 (a). “The contract itself merely specifies what [appellant was] to do and provides that he be paid [$2,500 for doing it]. It placed no burden on [appellant] to use the precise [$2,500 received from Ali to achieve the desired result] rather than an equivalent sum of money. It follows that the [S]tate failed to prove a conversion. ...” Eubanks v. State, 144 Ga. App. 152, 154 (2c) (241 SE2d 6) (1977).

2. There is, however, authority which purportedly supports the State’s theory: “[T]he evidence showed that Graddy contracted with appellant to build a laundry room in Graddy’s basement and paid $800 of the contract price at the time the contract was signed. When appellant did not commence the work pursuant to the contract, Graddy terminated the contract and appellant agreed to refund the initial amount paid less $25 for materials purchased. Appellant did not repay the money. . . . [A]ppellant’s conviction was based ... on the theory that he was given $800 under an agreement to make a specified application of the funds, and knowingly converted them to his own use in violation of the agreement. This would constitute theft by conversion. OCGA § 16-8-4.” Byrd v. State, 186 Ga. App. 446 (1) (367 SE2d 300) (1988).

Four judges of this Court now believe that this analysis in Byrd is erroneous. Having been paid funds for making property improvements, a contractor who uses those funds other than to pay for the labor, services or materials that have been furnished for the improvements may be guilty of theft by conversion under OCGA § 16-8-15

(a) . One who obtains funds by making promises of the performance of services which he does not intend to perform or knows will not be performed may be guilty of theft by deception under OCGA § 16-8-3

(b) (5). However, one who merely obtains funds as the present consideration for his promise to perform future services is under no agreement or other known legal obligation to make a specified application of those specific funds, but is only under the contractual obligation to provide the promised services and may not, therefore, be found criminally liable for theft by conversion of the funds under OCGA § 16-8-4. “The sole ‘interest’ that the [contracting party has] in the [funds is] a right to future [performance] pursuant to the . . . contract. It is thus clear that the [funds do] not belong to ‘another’ and [one] cannot be charged under [OCGA § 16-8-2] with theft of property to which he has not only ‘rightful possession,’ but also title, unless . . . the evidence supports a finding of guilt under [OCGA § 16-8-3] for theft by deception. [Cits.]” Elliott v. State, 149 Ga. App. 579, 581 (1) (254 SE2d 900) (1979). Compare Stull v. State, supra. Accordingly, four Judges.would overrule Byrd v. State, supra, insofar as it stands for the proposition that the evidence in either that case or the instant case would authorize a finding of guilt for theft by conversion under OCGA § 16-8-4.

3. The State also failed to prove appellant’s guilt for theft under any other theory. Since appellant is not a contractor and the funds were not paid to him pursuant to a contract to make improvements to Ali’s real property, the evidence in the instant case would not authorize a finding of his guilt for theft by conversion under OCGA § 16-8-15. Since there is no evidence that appellant did not intend to perform the services at the time that he accepted the $2,500 fee from Ali, there is no basis for upholding the conviction under the theory that appellant committed a theft by deception under OCGA § 16-8-3 (b) (5). See Holt v. State, 184 Ga. App. 664, 666 (1) (362 SE2d 464) (1987). Compare Henderson v. State, 257 Ga. 618 (362 SE2d 346) (1987) (submitting a bill for past goods and services that were never performed). The only crime that the State may have proved that appellant committed was the act of passing a bad check in violation of OCGA § 16-9-20. However, appellant was not being tried for that offense. It follows that his unauthorized conviction for theft must be reversed.

4. It is unnecessary to address appellant’s remaining contentions that the State failed to prove venue in Clayton County.

Judgment reversed.

Birdsong, Sognier and Cooper, JJ., concur. Banke, P. J., concurs in Divisions 1, 3, 4 and in judgment. Deen, P. J., McMurray, P. J., Pope and Beasley, JJ., dissent.

Beasley, Judge,

dissenting.

1.1 respectfully dissent with respect to the reversal of the conviction. Byrd v. State, 186 Ga. App. 446 (1) (367 SE2d 300) (1988), is correct and supports it.

Insofar as is pertinent here, Byrd enumerated as error the denial of his motion for directed verdict of acquittal and the court’s charging the elements of theft by taking (OCGA § 16-8-2). The charge was in accordance with the indictment, which charged theft by taking in two counts, by the two methods of committing that crime.

Byrd’s argument was two-fold. One was that he was charged with the wrong crime, and the jury was instructed on the wrong crime, in that if he was guilty of any crime, it would be theft by deception of the type specified in OCGA § 16-8-3 (b) (5). The second part of the argument was that there was insufficient evidence of the commission of either crime.

We rejected the proposition that Byrd had to be charged with violation of OCGA § 16-8-3 (b) (5), for the reason that the broad language of the theft by taking statute encompasses thefts by various manners, i.e., deception and conversion. This was based on authority cited in the opinion, one of which cases is quoted in the majority opinion here. The statute itself says “. . . regardless of the manner in which the property is taken or appropriated.” The Supreme Court has said of this clause: “While [it] renders the section sufficiently broad enough to encompass thefts or larcenies perpetrated by deception as prohibited under [OCGA § 16-8-3], and possibly broad enough to encompass other types of theft prohibited by other sections of the Criminal Code of Georgia, this is no impediment to an indictment thereunder. Martin v. State, 123 Ga. 478, 479 (51 SE 334) [1905].” Stull v. State, 230 Ga. 99, 101 (196 SE2d 7) (1973).

The issue was not whether Byrd should have been charged with OCGA § 16-8-15. It prohibits a particular type of conversion, that related to a specific industry. While the jury may have been authorized to indict under it, OCGA § 16-8-4 and OCGA § 16-8-15 are not mutually exclusive. The latter is narrower and, depending on the circumstances, may be included in the former. Just as there are species of theft by taking, so there are sub-species of theft by conversion.

In any event, the essential elements of the generic crime of theft by taking were present in the evidence in Byrd’s trial, when tested by the standard of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). Byrd contracted to do work and extracted an advanee payment for this specific work and the materials connected with it. He delivered a small amount of material and did no work. He promised to return the victim’s money, except a minor portion for those materials, but kept it.

Decided December 5, 1990.

Sexton, Turner & Moody, Lee Sexton, for appellant.

Robert E. Keller, District Attorney, Daniel J. Cahill, Assistant District Attorney, for appellee.

This is not a square peg in a round hole; it is a round peg in a large round hole into which other round pegs also fit. Hill’s situation is one of them.

2. Venue in Clayton County was proper. There was evidence that defendant and Ali were introduced at the realtor’s office in Jonesboro to arrange for defendant to obtain financing for the purchaser of Ali’s business. They met several times there in that connection. It was there that defendant advised that his fee would be $2,500, which would be returned if the loan was not placed. The financing did not materialize.

Defendant gave the victim a check for the return of the funds, in Clayton County, with instructions to hold it for a few days. The check, which showed Clayton County as the address of defendant’s corporation, was returned for insufficient funds by the time it was presented for payment. Thus there was evidence that defendant exercised control over the victim’s money, the subject of the theft, in Clayton County. OCGA § 16-8-11.

The two options which the court saw available to the State on the question of venue in the circumstances in Stowe v. State, 163 Ga. App. 535, 537 (4) (295 SE2d 209) (1982), are not the only possibilities as to an accused’s exercise of control over another’s property. That case involved unlawfully drawing down funds from a construction account. This case involves stealing $2,500 which originally had been given in cash in one county and then purportedly returning it by a check in Clayton County.

I am authorized to state that Presiding Judge Deen, Presiding Judge McMurray, and Judge Pope join in this dissent.


source: Caselaw Access Project

author: Beasley, Judge.

license: Public Domain

text:
    A90A1623.
    GARMON v. U. S. ENTERPRISES, INC. et al.
    (400 SE2d 371)
   Beasley, Judge.

Plaintiff Garmon appeals an adverse judgment after a bench trial. Plaintiff had brought dispossessory proceedings against William Corey and his agent, U. S. Enterprises, Inc. Plaintiff alleged that defendants were tenants at will as to certain property owned by her, and that they had been given 60 days notice to vacate the premises but had refused to do so. Defendants answered and asserted that Corey’s right to occupancy was based upon a lease agreement which contained two options to extend the term of the lease for five additional years, both of which he had exercised. As a result, Corey was a tenant for the term of the second five years, from 1989 to 1994.

On May 20, 1964, Garmon leased property located at 6350 Memorial Drive to Phillips Petroleum for 20 years, from November 1, 1964 through October 31, 1984. The lease contained a provision that permitted the lessee to extend the lease for two periods of five years each upon giving proper notification to the lessor prior to the lease’s expiration. In 1977 Phillips Petroleum assigned its rights under the lease to Corey. From that time on, his agent and wholly owned corporation, U. S. Enterprises, paid the monthly rental.

In January 1984, Bob King, an officer of U. S. Enterprises, sent a notice by certified mail to Wheat Williams Realtors, the leasing agent for Garmon. The letter referenced the lease, the property location and the parties, and stated: “we exercise the first of two (2) five (5) year options stated in paragraph 13 of the lease agreement.” Corey continued to occupy the premises, paying the $250 per month rent provided for in the contract through his agent, U. S. Enterprises, until 1989. Garmon made no protest nor attempted to raise the rent from the stipulated rate. In 1988 Corey subleased the property.

On May 2, 1989, Robert Jackson, an officer of U. S. Enterprises, sent by certified mail a notice almost identical in content to the 1984 notice. It referred to the lease agreement, the property location and the names of the parties. It stated: “we exercise the second of two (2) five (5) year options stated in paragraph 13 of the lease agreement.” This letter was sent to Wheat Williams Realty which forwarded it to Garmon on May 5.

The trial court in a very thorough and detailed order found that Corey had substantially complied with the provisions regarding giving notice to Garmon that he wished to extend the term of the lease for five years from 1984 to 1989 and for five years from 1989 to 1994. Having exercised his options, Corey was not a tenant at will who could be ousted upon 60 days notice. Rather, he held under the lease agreement for a specific term of five years.

On appeal Garmon contends that Corey failed to comply with the provision of the contract which states the notice would be sent to Garmon’s address as set forth in the contract. Garmon also asserts that the notice nowhere indicates that the option is being exercised on behalf of Corey. Lastly, Garmon argues that the contract requires a renewal rather than an extension of the lease and that the mere payment by the lessee and acceptance by the lessor of rentals after expiration of the original lease does not effect a renewal, and lessee occupies the status of a tenant at will. She cites Citizens Oil Co. v. Head, 201 Ga. 542 (40 SE2d 559) (1946), and Erquitt v. Solomon, 135 Ga. App. 502 (218 SE2d 172) (1975).

Paragraph 13 of the lease gave lessee the option to extend the lease for a term of five years after expiration of the primary term (20 years) and if that option was exercised the further option of extending the term for an additional term of five years from the extended term. The lessee had to give lessor written notice at least 30 days before expiration of the primary term or of the extended term, as the case might be.

The lease in paragraph 16 provided that: “All notices required . . . shall be considered as properly given if delivered in writing, personally, or sent by certified United States mail, postage prepaid with return receipt requested, addressed to Lessor at the address first above shown.” Lessor Garmon had moved in 1988 and had sent her new address to Corey in December that year.

The agreement did not require paragraph 16 notice as the exclusive means of accomplishing the requirement of giving written notice to lessor 30 days before expiration of the lease term. In both instances, in 1984 and 1989, Garmon obviously was informed by a written document that the five-year options were being exercised. Moreover, the notices were given well before expiration of the primary term and the extended one. The essential requirement was that Garmon receive the notices, which she did. The failure to address the notices directly to Garmon forms no basis for voiding the exercise of the options.

Garmon had been dealing with Corey through his agent and wholly owned corporation throughout the existence of their lease relationship. There is no merit to the contention that the letters did not disclose that Corey was exercising his rights under the terms of the lease.

The cases cited by Garmon, Citizens Oil Co., supra, and Erquitt, supra, are inapposite because they only stand for the proposition that merely paying rent, which is accepted, beyond the term does not act to effectuate a renewal (as opposed to an extension) of the lease, but only a tenancy at will. This lease did provide expressly that the term could be extended, not renewed, in which case, if notice was not provided for, then merely remaining in possession and paying rent would result in the term being extended. Hamby &c. v. Ga. Iron &c. Co., 127 Ga. 792, 802 (56 SE 1033) (1906); Head v. Scanlin, 258 Ga. 212, 213 (1) (367 SE2d 546) (1988); Linch v. McNeil Real Estate Fund, 146 Ga. App. 505, 507 (2) (246 SE2d 718) (1978).

Where notice is mandated it must be given. Flamex Distributors v. Herman, 140 Ga. App. 771, 773 (232 SE2d 124) (1976). The written notice that the right to extend was being exercised, under the lease contract, did insure the continuation of the lease for the term specified. Chalkley v. Ward, 119 Ga. App. 227, 232 (1) (166 SE2d 748) (1969); Thornton v. Ellis, 184 Ga. App. 884, 885 (1) (363 SE2d 584) (1987).

Decided December 5, 1990.

Earnie R. Breeding, for appellant.

McKenzie & McPhail, Stephen M. Schatz, Wayne D. Taylor, for appellees.

Judgment affirmed.

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


text:
    A90A1625.
    THE STATE v. LOWMAN.
    (400 SE2d 373)
   Beasley, Judge.

The issue for decision is whether or not defendant Lowman’s prosecution for 14 counts of theft by conversion, OCGA § 16-8-4, of funds entrusted to him as executor of his father’s estate is time-barred. The court granted Lowman’s plea based on the statute of limitation, and the State appeals. Defendant denominated his plea as one in abatement but sought to bar prosecution and not merely to delay it. Because the grant of the plea,- which was in essence a plea in bar, effectively dismissed the indictment, the State may appeal the ruling. See OCGA § 5-7-1 (1); State v. Williams, 172 Ga. App. 708 (1) (324 SE2d 557) (1984).

Lowman was indicted on October 9, 1989, for alleged conversion of nearly $400,000 in estate funds: each count related to consecutive years between 1971 and 1984 and involved amounts varying from $2,230 to $65,890.

Prosecution for the felonies had to have been commenced within four years after the commission of the crimes. OCGA § 17-3-1 (c). Indictment on October 9,' 1989, of the thefts alleged to have been committed prior to October 9, 1985, would be too late unless the statute of limitation was tolled.

“ ‘The period within which a prosecution must be commenced under Code Section 17-3-1 . . . does not include any period in which: . . . (2) The person committing the crime is unknown or the crime is unknown. . . .’ OCGA § 17-3-2. Thus, ‘(t)he key to determining when the statute of limitation begins to run is to find when the offender or offense became known. (Cits.)’ State v. Brannon, 154 Ga. App. 285, 286-87 (267 SE2d 888) (1980). The State bears the burden of proof in this regard. See State v. Lester, 170 Ga. App. 471 (317 SE2d 295) (1984); State v. Tuzman, 145 Ga. App. 481 (3) (243 SE2d 675) (1978). . . .

“ ‘(T)his court in Brown v. State, 6 Ga. App. 329 (2) (64 SE 1001) ((1909)), . . . held that “The statute of (limitation) does not begin to run in favor of the offender until his offense is known to the prosecutor, or to someone interested in the prosecution, or injured by the offense.” The only possible construction of this decision is that when the offense is known to the person injured by the offense, the statute does begin to run. . . . This is as it should be, because the injured person has some motive for reporting the crime to the State. Another thing shown by the decision in the Brown case is that the prosecutor is not the only one whose knowledge would bind the State. It holds that the statute does not begin to run until the offense is known to the “prosecutor” or to someone “injured by the offense”; which necessarily means that it does begin to run after it is known to the prosecutor or to the one “injured by the offense.” ’ ” Sears v. State, 182 Ga. App. 480, 481 (1) (356 SE2d 72) (1987).

The State contends that the statute of limitation was tolled under OCGA § 17-3-2 (2) until August 1989, because the fact that Lowman had committed a criminal act was unknown to the heirs-at-law until August 1989, when some of the children of the devisees and legatees undertook to investigate Lowman’s actions in handling the estate and found that Lowman had actually stolen funds. The undisputed facts are otherwise.

Lowman was appointed executor of his father’s estate on June 1, 1970. The legatees and devisees under Lowman’s father’s will included Lowman, Lowman’s three sisters, and Lowman’s brother Freeman. Freeman died intestate in 1973. In early 1985, Freeman’s son, as administrator and an heir of his deceased father’s estate, petitioned for an accounting of his grandfather’s estate because Lowman had not disbursed estate payments in four years; in February the probate court ordered the accounting. A hearing was held on March 1 at which Lowman admitted owing $187,000 to the estate but repeatedly said that he would settle the estate. The parties and the court went to the bank where the estate account was held and found a balance of $7 in the account.

In July 1985, Freeman’s son petitioned the probate court to remove his uncle, Lowman, as executor because he was unfit for the trust. On August 9, the probate court revoked Lowman’s letters as executor after finding him guilty of the mismanagement charge unless he appeared and accounted for his actions as he had been ordered to do. He did not do so.

Decided December 5, 1990.

Roger G. Queen, District Attorney, for appellant.

William L. Reilly, for appellee.

At the hearing on Lowman’s “plea in abatement,” the nephew admitted that between March and July of 1985, he knew that Low-man had misused in some way the $187,000 from the estate. The district attorney admitted that during a period between February and July of 1985, someone on behalf of Freeman’s heirs contacted his office regarding prosecuting Lowman for the missing funds; a note in the district attorney’s file dated May 1, 1985, recounted that Lowman admitted owing $37,000, was going to resign and have a new executor appointed, and wanted to settle; at that time there was dissention in the Lowman family regarding prosecuting Lowman so it was decided not to seek indictment. In his capacity, the district attorney knew in the spring of 1985 that Lowman’s heirs were alleging that Lowman had stolen money from the estate.

It was clear as early as March 1985 to relatives directly interested in Lowman’s prosecution and/or injured by the offenses, that Low-man had misused funds from the estate. The fact that the relatives may not have known the full extent of Lowman’s actions or that they were criminal acts does not affect the effect of the actual knowledge of Lowman’s conduct for the purpose of tolling prosecution. See Sears, supra at 481 (1). Moreover, the State’s prosecuting attorney had knowledge of the allegations of theft during the spring of 1985 also.

The trial court correctly barred prosecution of the alleged thefts by conversion prior to March 1, 1985, i.e., counts one through 13 of the indictment, as untimely. The court erred in granting Lowman’s plea as to count 14; it alleged criminal conduct as late as December 31, 1985, within four years of the indictment on October 9, 1989.

Judgment affirmed in part and reversed in part.

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

       Subsection (4) is not involved in this appeal.


author: McMurray, Presiding Judge.

text:
    A90A1739.
    SCOTT v. THE STATE.
    (400 SE2d 677)
   McMurray, Presiding Judge.

Defendant was charged, via accusation, with interfering with the custody of his minor daughter, Cheryl Michelle Scott. The case was tried before the court without a jury, but a trial transcript was not prepared. Instead, the trial court entered the following summary of evidence:

“Cheryl Freda Scott, after being sworn, testified that she and the Defendant were formerly husband and wife but that they were divorced in the Clayton Superior Court on July 3, 1979. That custody of their minor child Cheryl Michelle Scott, was awarded to her. . . . That on December 26th, 1989, she took Cheryl Michelle Scott (the minor child) to the home of Defendant’s mother and left the child there for visitation with the father, Defendant, knowing that he would take the child to Thomasville, Georgia to his home. That she expressed her desire that Defendant have the child home by 6:00 o’clock P.M. on January 1, 1990. That this visitation was not as contemplated by the Decree. That this visitation was in excess of the decree and was made pursuant to an agreement between herself and Defendant. . . . That Defendant did not have the child home by the time specified by their agreement outside the Decree. That she did not consent to defendant keeping the child beyond 1/1/90. That she received a call from the child and the father, Defendant, that they said the truck had broken down in Orlando, Florida. The father said he would get the child home . . . ‘when he got the child home.’ That she went to Thomasville, Georgia, and picked the child up and brought the child home.

“The Defendant testified that the child had been with him several months, was going to school in Thomasville, and that about Christmas time she told him she would like to move back to her mother’s. . . . That the former wife brought the child to his mother’s so he could have holiday visitation with the child. That the mother did say that it was her desire to get the child back home on January 1, 1990 at 6:00 P.M. That this visitation was in excess of that awarded by the Court in the decree of divorce. That he drives his truck as a freight carrier. That he took the child with him on a trip to Orlando, just to talk to her about the custody and other things. The truck did break down. He and his daughter did call her mother. He did tell the mother he would get the child back when they got back.

“There was no disagreement or argument when the mother showed up in Thomasville two (2) days later to pick up the child. [The] stepmother was [then] at the garage to pick up her car to return the child home, but the car again broke down on the way home from the garage and she spoke with the mother who was at her home concerning picking up the child who was with a sitter.” It is from this evidence that defendant was found guilty of the offense charged. Defendant now appeals and challenges the sufficiency of the evidence. Held-.

The Supreme Court recently stated that it “views with great displeasure any lack of obedience to child custody or child support orders, [but that] a person may not be held culpable under a criminal statute unless the act committed by the person clearly is in violation of the law.” Brassell v. State, 259 Ga. 590, 591 (385 SE2d 665). In the case sub judice, defendant was charged with interference with custody in that he “did knowingly or recklessly take or entice Cheryl Michelle Scott, age 14 years, away from the lawful custody of Cheryl Fincher Murphy when not being privileged to do so.” See OCGA § 16-5-45 (b) (1) (A). The State argues that defendant’s conviction should be affirmed if there is “any evidence” to support this charge. This argument is without merit.

Decided December 5, 1990.

John L. Watson, Jr., for appellant.

Keith C. Martin, Solicitor, Kimberly C. Carr, Assistant Solicitor, for appellee.

“The United States Supreme Court has held the ‘any evidence rule’ unconstitutional in determining the question of the sufficiency of the evidence to support a conviction. The defendant is entitled to a reversal ‘if it is found . . . upon the record evidence . . . (that) no rational trier of fact could have found proof of guilt beyond a reasonable doubt.’ [Jackson v.Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560).]” William W. Daniel’s Georgia Criminal Trial Practice (1989 ed.), § 28-8, p. 739. In the case sub judice, the State failed to prove beyond a reasonable doubt that defendant is guilty of the offense charged, interference with custody, as alleged in the accusation.

The evidence shows that defendant retained possession of Cheryl Michelle Scott upon the expiration of a lawful period of visitation. See OCGA § 16-5-45 (b) (1) (C). The evidence does not authorize a finding that defendant interfered with custody as alleged in the accusation, i.e., defendant “did knowingly or recklessly take or entice Cheryl Michelle Scott, age 14 years, away from the lawful custody of Cheryl Fincher Murphy. ...” Further, there is no direct evidence that defendant intentionally or wilfully retained the minor child beyond the authorized period of visitation. On the contrary, the undisputed evidence shows that defendant retained possession of the minor child beyond the authorized visitation period because of unavoidable vehicle breakdowns. Consequently, since there is insufficient evidence to authorize a finding of guilt under the standard of proof prescribed in Jackson v. Virginia, 443 U. S. 307, supra, defendant’s conviction must be reversed.

Judgment reversed.

Carley, C. J., and Sognier, J., concur.


author: Carley, Chief Judge.

text:
    A90A1873.
    NEAL v. THE STATE.
    (400 SE2d 375)
   Carley, Chief Judge.

Appellant was indicted for violating OCGA § 49-4-15 (a) (1) by fraudulently obtaining $1,585 in public assistance payments to which she was not entitled between August 1987 and January 1988. She filed a plea of autrefois convict and appeals directly from the denial of that motion. See Patterson v. State, 248 Ga. 875 (287 SE2d 7) (1982).

“ ‘ “In order to sustain a plea of former jeopardy, it is always incumbent upon the defendant to plead and prove that the transaction charged in the second indictment (or accusation) is the same as a matter of fact as that charged in the first indictment or accusation under which he was put in jeopardy.” (Cit.)’ [Cit.]” (Emphasis in original.) Sandner v. State, 193 Ga. App. 62, 63 (1) (387 SE2d 27) (1989). There is no copy of the first indictment of appellant in the record. Thus, there is no evidence that the transaction that is charged in the instant indictment is the same ás a matter of fact as that which was charged in the first indictment or that appellant was ever placed in jeopardy under the first indictment. Moreover, even accepting the truth of the allegations of appellant’s plea of autrefois convict, the plea was nevertheless properly denied. According to those allegations, appellant had previously pled guilty to an indictment charging her with fraudulently obtaining $3,796 in public assistance payments between March 1985 and March 1986. The instant indictment charges appellant with fraudulently obtaining a different amount of public assistance payments during a different uninterrupted period of time. Thus, the transaction charged in the instant indictment is not the same as a matter of fact and charges appellant with commission of a similar, but subsequent, crime to that charged in the purported first indictment to which she allegedly pled guilty. OCGA § 49-4-15 (a) (1) prohibits the act of fraudulently obtaining “[a]ny grant or payment of public assistance, food stamps, or medical assistance (Medicaid) to which [one] is not entitled. . . .” (Emphasis supplied.) If appellant was indicted and pled guilty to fraudulently obtaining $3,796 in public assistance payments between March 1985 and March 1986, the State is not barred from prosecuting her for the subsequent fraudulent obtaining of $1,585 in public assistance payments between August 1987 and January 1988.

Appellant’s further reliance upon OCGA § 16-1-7 (b) is misplaced. As noted, the instant crime does not arise from the “same conduct” as that for which she was previously prosecuted but arises from her subsequent, albeit similar, fraudulent conduct. See generally Ealey v. State, 139 Ga. App. 604, 605 (1) (229 SE2d 86) (1976). Moreover, appellant neither pled nor proved the jurisdiction wherein her first prosecution occurred and, therefore, she failed either to plead or to prove that the crime charged in the instant indictment could have been included in the former prosecution. See State v. Bolton, 144 Ga. App. 797, 799 (1) (242 SE2d 378) (1978). Finally, appellant also failed to show that the instant crime was “ ‘actually known to the prosecuting officer actually handling the [first] proceedings.’ ” (Emphasis in original.) Baker v. State, 257 Ga. 567, 569 (361 SE2d 808) (1987).

Decided December 5, 1990.

G. Scott Sampson, for appellant.

Lewis R. Slaton, District Attorney, Joseph J. Drolet, Carl P. Greenberg, Katherine Beaver, Assistant District Attorneys, for appellee.

Judgment affirmed.

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


author: Banke, Presiding Judge.

text:
    A90A1935.
    TRUELOVE v. THE STATE.
    (400 SE2d 396)
   Banke, Presiding Judge.

The appellant was convicted of armed robbery. He brings this appeal from the denial of his motion for new trial. Held:

1. The appellant contends that a pre-trial photographic lineup from which he was identified was impermissibly suggestive and that the court consequently erred both in admitting evidence concerning the photographic lineup and in permitting in-court identification testimony from witnesses who had viewed it. The display consisted of photographs of six white males ranging from 17 to 24 years of age. However, of these six individuals, the appellant was the only one photographed standing in front of a height chart. Two witnesses who viewed the display were able to positively identify the defendant both from the photo display and at trial, while two other witnesses selected someone else and could not identify the appellant at trial. The trial court was clearly authorized to conclude under these circumstances that the photographic lineup was not impermissibly suggestive. See generally Neil v. Biggers, 409 U. S. 188 (93 SC 375, 34 LE2d 401) (1972).

2. The defendant contends that the pre-trial identification procedures were also tainted by the illegal impoundment and inventory search of his vehicle, which led to the discovery of information which enabled the police to locate him. Clearly, this would have no bearing on the integrity of the pre-trial identification procedures. Furthermore, no such objection was made at trial, and it is axiomatic that “ ‘[e]rrors not raised at trial will not be considered and ruled on by this court on appeal.’ [Cit.]” Brinson v. State, 191 Ga. App. 151, 152 (3) (381 SE2d 292) (1989).

Decided December 5, 1990.

Word & Flinn, Gerald P. Word, for appellant.

William G. Hamrick, Jr., District Attorney, Agnes McCabe, Assistant District Attorney, for appellee.

Judgment affirmed.

Birdsong and Cooper, JJ., concur.


text:
    A90A1992.
    WADE v. THE STATE.
    (400 SE2d 377)
   Banke, Presiding Judge.

The appellant was convicted of aggravated assault upon a police officer, driving under the influence, and attempting to elude a police officer. He brings this appeal from the denial of his motion for new trial.

Officer Batty of the Macon Police Department testified that at around 3:00 a.m. on July 23, 1989, as he was directing traffic and conducting driver’s license and proof-of-insurance checks at an intersection in Macon where a traffic light was being repaired, he was approached by a white Maverick automobile being driven by the appellant. He stated that he signalled this vehicle to stop and that it initially slowed as if to do so but then accelerated suddenly straight towards him, causing him to have to jump out of the way to avoid being hit. Officer Batty immediately got into his patrol car and gave chase to the vehicle, which pulled over and stopped after going approximately a half a mile. According both to Officer Batty and to another officer who arrived on the scene to assist him, the appellant smelled of alcohol, exhibited slurred speech, and behaved in a threatening and belligerent manner upon exiting his vehicle. The city employee who had been repairing the traffic light at the intersection testified that he had witnessed the incident and that “if [Officer Batty] had not jumped out of the way he would have been run over.” Held:

1. The appellant contends that the trial court erred in allowing the state to call two police officers whose names were not on the list of witnesses provided to him pursuant to OCGA § 17-7-110. Although these witnesses’ names were not on the list provided to the appellant pursuant to OCGA § 17-7-110, they were contained in the state’s file, which was made available to the áppellant’s counsel and was examined by him prior to trial. In addition, the trial court gave the appellant’s counsel an opportunity to interview these witnesses during the lunch recess, which, according to the transcript, lasted two and a half hours. When the court reconvened following this recess, the appellant renewed his objection but did not move for a continuance to obtain additional time to prepare for the testimony of these witnesses, nor did he indicate how he had been prejudiced by the state’s failure to notify him prior to trial that these witnesses were going to testify. Indeed, he has not suggested to this date how additional time to prepare for the testimony of these witnesses might have been of any benefit to him. “Since the purpose of [OCGA § 17-7-110] was satisfied by the trial court’s effort to afford the appellant other forms of relief beside excluding the witness [es]’ testimony altogether, we hold that there was no error in allowing [these] witnesses] to testify.” Cates v. State, 245 Ga. 30, 34 (262 SE2d 796) (1980).

2. The appellant contends that the trial court erred in allowing one of the police witnesses to offer testimony to the effect that the appellant’s mother had told him the appellant had been involved in a hit-and-run accident involving her unoccupied parked car just prior to the occurrence of the events for which he was on trial. The appellant readily admitted the occurrence of this incident on cross-examination; and, in addition, Officer Batty testified without objection that the appellant told him following his arrest that he thought his mother “had already called police” regarding this accident and “that that’s why I was trying to stop him.” Because the testimony complained of was merely cumulative of other, properly admitted evidence to the same effect, any error in admitting it must be considered harmless. Accord Spaulding v. State, 185 Ga. App. 812, 814 (366 SE2d 174) (1988).

3. The appellant presented two witnesses who maintained that they had been at the intersection in question at the time in question and had seen no police officer there. While cross-examining the appellant, the state’s attorney asked him why he had not previously told “anybody in this courthouse or the police department or the court or the grand jury” of the existence of these witnesses and the appellant’s counsel objected on the ground that criminal defendants are neither obligated nor permitted to present testimony to the grand jury. Following a brief discussion with the state’s attorney concerning whether defense witnesses were ever in fact allowed to testify before the grand jury, the judge instructed the state’s attorney to move on with his questioning, telling him: “[W]e’re not going to try the grand jury system this afternoon. ...” The appellant contends that the court should either have given the jury certain unspecified curative instructions at this time or rebuked the state’s attorney for implying that he (the appellant) had an obligation to present his defense to the grand jury. Because no such remedial measures were requested in the trial court, this enumeration of error presents nothing for review. See generally Holt v. State, 147 Ga. App. 186, 187 (5) (248 SE2d 223) (1978).

Decided December 5, 1990.

Sinnreich & Francisco, Elizabeth R. Francisco, for appellant.

Willis B. Sparks III, District Attorney, Kimberly S. Shumate, Assistant District Attorney, for appellee.

4. The appellant contends that the court erred in failing to charge the jury on “reckless conduct” as a lesser offense included in aggravated assault. As no such charge was requested, this enumeration of error similarly presents nothing for review. See State v. Stonaker, 236 Ga. 1, 2 (222 SE2d 354) (1976).

5. The evidence, construed in the light most favorable to the verdict, was sufficient to enable a rational trier of fact to find the appellant guilty beyond a reasonable doubt of each of the three offenses of which he was convicted. See generally Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Judgment affirmed.

Birdsong and Cooper, JJ., concur.


text:
    A90A2150.
    BROOKS v. THE STATE.
    (401 SE2d 78)
    Decided December 5, 1990.

      James W. Lovett, for appellant.

      H. Lamar Cole, District Attorney, Bradfield M. Shealy, Assis

      tant District Attorney, for appellee.
   Banke, Presiding Judge.

Brooks pled guilty to aggravated assault and was sentenced to serve 15 years in prison, to be followed by five years on probation. He appeals, complaining that his appointed counsel did not provide him with effective representation. Held;

Because the effectiveness of counsel issue is raised for the first time on appeal by an attorney who did not represent the appellant at trial, and because there were no post-conviction proceedings below at which the issue could have been raised, the case is remanded to the trial court for a hearing on this issue. See generally Dawson v. State, 258 Ga. 380 (369 SE2d 897) (1988), and cases cited therein. Cf. Lamons v. State, 170 Ga. App. 745 (318 SE2d 509) (1984) (holding that a motion for new trial is not a proper vehicle for contesting a guilty plea).

Case remanded with direction.

Birdsong and Cooper, JJ., concur.


author: Pope, Judge.

text:
    A90A2201.
    S & T TIMBER, INC. v. SOUTHERN GENERAL INSURANCE COMPANY.
    (400 SE2d 379)
   Pope, Judge.

This appeal is from the grant of summary judgment in favor of plaintiff/appellee Southern General Insurance Company (Southern General) in its declaratory judgment action to determine whether it was obligated to provide liability coverage for the owner of a vehicle it insured which was involved in a collision. On September 23, 1987, Donnie Whitehead was driving a tractor truck owned by Johnnie Whitehead and Whitehead Trucking Company, to which was attached a log trailer owned by C. A. Duncan, Southern General’s insured. A collision occurred in which Charles Edward Blass was killed, and suit was filed in federal court by the administrator of his estate against Duncan and other parties. When Southern General brought the instant action, only Duncan and appellant/defendant S & T Timber responded.

The evidence is undisputed that Duncan owned a tractor truck and two log trailers, including the one involved in the collision, all of which were insured by Southern General. Item 5 of the declarations page of the policy identifies the tractor truck as an insured vehicle and also refers to “endorsement 150M-0,” listing two trailers. The words “trailer” and “semi-trailer” are used interchangeably in the policy. Endorsement 150M-0 provides that “if policy declaration item 5 is completed to show the insured unit to be a tractor, the following description of insured semi-trailer applies. Any owned semi-trailer while singularly attached to the insured tractor.” A trailer is defined as covered under the policy only “if not being used for business purposes.” The exclusions page of the policy further provided that if the trailer attached to the insured tractor is not insured, coverage on the entire vehicle is specifically excluded.

Southern General argues that there is no coverage because at the time of the collision Duncan’s trailer was attached to the tractor owned by Johnnie Whitehead and Whitehead Trucking, rather than Duncan’s insured tractor; thus, the trailer was not insured under the terms of its policy, and it is entitled to judgment as a matter of law. S & T argues the trailer was a separately insured vehicle regardless of the ownership of the tractor to which it might be attached when a collision occurred. S & T further argues that the intent of the parties to insure the trailers as separate vehicles is shown by the fact that there were separate identifiable premiums paid for the tractor and the trailers, and separate rating information given on the trailers. S & T argues that if the trailers were not covered except while attached to his tractor, Duncan received no benefit for the payment of the additional premium because he simply could have failed to describe them as insured units and they still would have been covered under the policy as long as they were attached to his tractor.

Decided December 5, 1990.

Russell, Adamson & Stell, John E. Stell, Jr., for appellant.

Jenkins & Eells, Frank E. Jenkins III, Kirk R. Fjelstul, for appellee.

We do not agree. “Every insurance contract shall be construed according to the entirety of its terms and conditions as set forth in the policy and as amplified, extended, or modified by any rider, endorsement, or application made a part of the policy.” OCGA § 33-24-16. “ ‘An insurance company may fix the terms of its policies as it wishes, provided they are not contrary to law, and it may insure against certain risks and exclude others.’ (Cit. and punctuation omitted.) [Cit.]” Lofton v. State Farm &c. Ins. Co., 192 Ga. App. 154 (384 SE2d 245) (1989).

The terms of the policy under review, including the endorsement and the exclusions, clearly establish that Duncan’s tractor was the only insured vehicle thereunder, and that the trailers were insured only to the extent of the endorsement as defined therein and as referenced on the declarations page. Thus the trailers were insured only when attached to Duncan’s insured tractor. If Duncan had not purchased the endorsement for the trailers, the entire tractor-trailer rig would have been excluded when used for a business purpose, and Duncan was in the business of hauling logs. Duncan paid the required additional premium only as consideration for the endorsement allowing him to avoid the exclusion. It follows that the trial judge correctly ruled that Southern General was entitled to summary judgment as a matter of law in regard to Duncan’s liability coverage under the policy. See Southern Trust Ins. Co. v. Ga. Farm Bureau Mut. Ins. Co., 194 Ga. App. 751 (3) (391 SE2d 793) (1990); Carter v. Early American Ins. Co., 191 Ga. App. 820 (383 SE2d 185) (1989).

Judgment affirmed.

Deen, P. J., and Beasley, J., concur.


author: Per curiam. Deen, Presiding Judge,

text:
    A90A2220.
    HOLLIDAY CONSTRUCTION COMPANY v. SANDY SPRINGS ASSOCIATES, INC.
    (400 SE2d 380)
   Per curiam.

Sandy Springs Associates (Sandy Springs), CCR Construction Company (CCR) and Holliday Construction Company, Inc., (Holliday) executed a joint payment agreement on October 9, 1987, which was executed on behalf of Holliday by Lewis O. Powell III, treasurer, director, shareholder and “Project Manager” for Holliday. The agreement was presented to Sandy Springs by CCR as an inducement to obtain funds necessary to complete its subcontract with Holliday. It provided that Holliday was to make a joint payment to Sandy Springs and CCR in the amount of $10,000, Payments were to be delivered to Sandy Springs at its address as set forth in the contract. In accordance with the agreement, Sandy Springs advanced $1,360 on October 9, 1987, and $8,600 on October 15, 1987, to CCR. Sandy Springs received a check for $3,206.58 drawn on a Holliday account on November 23, 1987, which was credited to Holliday under the joint payment agreement. Holliday, however, has since failed to pay $6,793.42, the remaining balance, although it has paid $5,000 directly to CCR. On January 13, 1985, Holliday issued a check payable to CCR and Sandy Springs in the amount of $710.42 and delivered it to CCR. Sandy Springs, however, neither received the check nor received any benefit from it. Sandy Springs brought a breach of contract action against CCR and Holliday, and later filed a motion for summary judgment. The motion was granted against Holliday, and Sandy Springs was awarded damages in the amount of $6,793.42, plus court costs and post-judgment interest. Holliday Construction Company appeals.

1. Holliday first contends that the trial court erred in finding that Lewis O. Powell III possessed the requisite authority to contractually bind appellant.

It was undisputed that Powell was an officer of Holliday, a shareholder in the corporation, and project manager of the construction project in question, that he signed the agreement as “Project Manager,” and that his signature is genuine. There is nothing in the record to indicate either that Sandy Springs had knowledge of Powell’s lack of authority to bind his company or that Powell lacked apparent authority to sign the agreement on Holliday’s behalf. Powell admitted in his deposition that he signed the agreement for Holliday, that Holliday paid $5,000 directly to CCR without Sandy Springs being made the co-payee on the check, and that the check was not delivered to Sandy Springs.

“A signature may be made by an agent or other representative, and his authority to make it may be established as in other cases of representation.” OCGA § 11-3-403 (1). Under OCGA § 11-3-404 (1), “Any unauthorized signature is wholly inoperative as that of the person whose name is signed unless he ratifies it or is precluded from denying it.” An unauthorized signature is one made without actual, implied or apparent authority. OCGA § 11-1-201 (43). Where a corporate officer has at least apparent authority, if not actual authority to place the corporate endorsement upon negotiable instruments, the defendant cannot defeat such endorsements merely, by alleging that in truth and in fact he had no such authority and that his act in endorsing the paper had not been ratified. Bank South v. Midstates Group, 185 Ga. App. 342, 344 (364 SE2d 58) (1987); Massell v. Fourth Nat. Bank of Macon, 38 Ga. App. 601, 604 (144 SE 806) (1928). Since the unrebutted evidence shows that Powell had apparent authority to execute the document, Holliday cannot defeat the contract by merely alleging that he had no authority to sign on behalf of the corporation.

2. Appellant also claims that Powell’s act in signing the contract was not ratified. It was ratified by the submission of the check for $3,206.58 which was made payable to both CCR and Sandy Springs to the place specified in the contract. Further evidence of ratification is found in the issuance of a second check to CCR and Sandy Springs as co-payees although it was never received by Sandy Springs. “Where a corporation knowing all of the facts accepts and uses the proceeds of an unauthorized contract executed in its behalf without authority, the corporation may be bound because of ratification. [Cits.]” Western American Life Ins. Co. v. Hicks, 135 Ga. App. 90, 91 (217 SE2d 323) (1975); Lanier Ins. Agency v. Citizens Bank, Hogansville, 168 Ga. App. 424 (309 SE2d 419) (1983). In the instant case, Holliday accepted the benefits of the loan to CCR and cannot now repudiate the contract under which it agreed to pay CCR jointly with Sandy Springs so that CCR’s loan could be repaid. Thus, there remains no material issue of fact requiring jury resolution as to whether there has been a ratification of the contract.

3. Appellant also raises the issue of lack of consideration for the contract by first alleging that because appellant is not liable for “an amount of money,” the contract is not supported by consideration. We disagree, because “any benefit accruing to the promisor, or any loss, trouble, or disadvantage undergone by the promisee, is a sufficient consideration, in the eyes of the law. ...” Vanguard Properties &c. v. Murphy, 136 Ga. App. 519, 521 (221 SE2d 691) (1975). Appellant’s allegation that the obligation represents a pre-existing debt is also without merit. The agreement was collateral for the loan to CCR, and there was deposition testimony of Alan Smith of Sandy Springs Associates that a check would not have been given to CCR “without the collateral for the loan.” There is no evidence that the loan proceeds represented a pre-existing debt.

4. Appellant’s assertion that the contract was void for vagueness is also without merit. While the contract may have contained some blanks, its meaning can be determined despite them. Interpretation of a contract is a question of law. OCGA § 13-2-1. No jury question is presented unless, after application of the applicable rules of construction, an ambiguity remains. American Cas. Co. v. Crain-Daly Volkswagen, 129 Ga. App. 576, 579 (200 SE2d 281) (1973); Farm Supply &c. v. Cook, 116 Ga. App. 814 (159 SE2d 128) (1967).

Judgment affirmed.

Deen, P. J., Pope and Beasley, JJ., concur. Deen, P. J., also concurs specially.

Deen, Presiding Judge,

concurring specially.

Speaking for the writer alone, it is appropriate under the special circumstances to make additional comments.

“Justice Bleckley having resigned, at the conclusion of his last opinion, read from the bench the [following] exquisite little poem, which was ordered spread upon the minutes by the court. It constitutes a fit close to the judicial career of one whose opinions in these reports show him not only to have been the profound lawyer, but also the accomplished scholar (R.)

“IN THE MATTER OF REST.
1. Rest for hand and brow and breast,
For fingers, heart and brain!
Rest and peace! a long release From labor and from pain:
Pain of doubt, fatigue, despair —
Pain of darkness everywhere,
And seeking light in vain!
2. Peace and rest! Are they the best
For mortals here below?
Is soft repose from work and woes
A bliss for men to know?
Bliss of time is bliss of toil:
No bliss but this, from sun and soil,
Does God permit to grow.”

In The Matter of Rest, 64 Ga. 452 (September Term, 1879).

The legendary and talented Chief Justice Logan Edwin Bleckley also penned these parting words as he left the court:

“FAREWELL TO THE LAW.
Farewell, my liege, beloved and long, long-served, good-bye,
My leave I take and forth I go with wept and sobbing sigh,
Which, now condensed to pensive dew, is trembling in my eye.

Decided December 5, 1990.

Daniel W. Lee, for appellant.

Duncan, Thomasson & Aeree, E. Marc Aeree, for appellee.

How oft in legal combat met have I, at low or lofty bar,
Contending suitors helped to wage or ward the fierce forensic war,
When rushed the battle horses and flew the battle car.
For more than one full decade, with pale, unsandaled feet,
In pure and spotless ermine I mused on Georgia’s seat,
And righteous judgment rendered between the Tares and Wheat.
My grand majestic master, vice-gerent here of God,
I quit thy special service, but stay beneath they rod,
An old and humble servant, uncovered and unshod.”

Logan E. Bleckley, A Memorial by The Georgia Bar Association, p. 168 (Mercer University Archives Reprint 1982).

Justice Robert H. Hall (now a United States District Court Judge) when leaving the Georgia Appellate Court wrote a farewell message, which I now adapt to the present occasion: “This is my final opinion after over [25] years of service on the [Court of Appeals] of Georgia. They have, indeed, been wonderful years for me, and I will cherish them as long as I live.

“I wish to thank the [distinguished Governor Carl E. Sanders] who appointed me to [the Court of Appeals of Georgia] and the people of Georgia who permitted me to serve in this state’s judicial system.

“During my [25] years on the Court of Appeals, I had the pleasure of serving with [28] members of [this] court [and in writing, voting on and ‘participating’ in over 13,000 opinions]. ... I will always be grateful to these judges ... for the kindness and assistance they extended to me during my tenure. I am also thankful for the conscientious work of my personal staff and the [support staffs of all the judges, past and present] who have served with me.

“God Bless and God Save the judicial system of Georgia, and its bench and bar.” Grantham v. State, 244 Ga. 776 (1979).

While concurring fully with the words of wisdom of Chief Justice Bleckley, written in 1879, and Justice Hall, written 100 years later, I would add that justice continues in 1990 to be dispensed under our Georgia Court of Appeals credo, formulated by then Chief Judge Jule W. Felton: “Upon the integrity, wisdom and independence of the judiciary depend the sacred rights of free men,” as well as under the motto of the Supreme Court of Georgia: “Fiat Justitia Ruat Caelum.”

Lena Reid, pro se.


author: Deen, Presiding Judge.

text:
    A90A2226.
    WARE v. THE STATE.
    (400 SE2d 384)
   Deen, Presiding Judge.

Billy Randall Ware was found guilty by a jury of criminal attempt to commit burglary. He appeals from the judgment entered on the conviction, claiming the evidence was insufficient to support the verdict, and that statements he made to the police should have been excluded from evidence at the trial.

At about 6:45 a.m. police were alerted that a burglar alarm was sounding at the Hackney residence. Mr. and Mrs. Hackney had already left for work at 6:15 a.m., leaving their house secure and quiet. When police officers arrived at about 7:15 a.m., they discovered no one at the house, the alarm still sounding, a window open with the screen removed, and what appeared to be a partial bootprint outside the open window. The telephone line to the house had been cut. Later, when officers dusted for fingerprints, they found only “two clear smudges” on the edge of the window screen.

As one of the officers arrived and got out of his car, a neighbor shouted from a nearby house, “There’s a man walking down the road,” and pointed toward an adjacent road. The officer drove over to the road, saw Ware walking about a quarter of a mile from the Hackney residence, and stopped him. The officer asked him for his name and some identification. Ware gave a false name and produced a driver’s license, which later proved to have been reported stolen nine months earlier. When asked what he was doing in the area, Ware replied that he had walked from his sister’s house to go job hunting. The officer questioned Ware about a large bulge in his shirt. Appellant removed his socks from inside his shirt, explaining that he had taken them off because they hurt his feet. Ware was wearing laced-up, combat-style boots. At that point the officer placed Ware under arrest. As he was putting him into the patrol car, the officer noticed that Ware was carrying a fold-up knife in a case. He removed the knife and found a piece of wire hanging on the blade.

Ware was transported back to the Hackney residence, where he was placed in another officer’s car and read the Miranda warnings. Later that day at the police station, Ware signed a form acknowledging his Miranda rights and waiving them to make a statement. He told police that he was living with his sister and brother-in-law, Bill Lofty. Lofty later claimed that Ware had moved out a few days earlier. He then gave conflicting versions as to how he had gotten to the area where the burglary was attempted, first stating that he walked there and later that Lofty had driven him there. That same day Lofty was also arrested and charged with the same offense, apparently on the sole basis that his automobile had been spotted that morning on a road near the Hackney residence shortly after the attempted burglary, and at another time about a week earlier. Lofty and Ware were tried together. Ware did not testify. After his motion for a directed verdict of acquittal was denied, Lofty was found not guilty by the jury. Held:

1. Ware contends the trial court erred by denying his motions for a directed verdict of acquittal and for a new trial because the evidence was insufficient to support the verdict. The evidence against Ware was entirely circumstantial. His conviction was based on evidence that he was found walking about a quarter of a mile from the Hackney residence within about a half hour of the attempted burglary. He lied about his identity and produced a driver’s license reported stolen nine months earlier. He never explained to the police why he had identified himself as someone whose driver’s license he produced, which he said he found in a parking lot the night before and which turned out to be stolen. He never explained to the police why he gave three different stories about the morning’s events. He never said where it was he was looking for a job. Although a carpet business was in the vicinity, this was an area of houses and woods and it was about 7:00 a.m. when Ware was stopped.

Particularly in light of patent lies, the jury could have disbelieved all of what Ware told the police, including that his socks were in his pocket because his feet were more comfortable in his combat boots without them, and concluded that his real activity shortly before he was apprehended was attempting to enter the Hackneys’ house. He had a knife with a piece of wire on it, and the telephone wire had been cut. He was wearing boots, and what appeared to be a bootprint was on the plastic sheet covering bags of stacked material below the partially opened window. He had socks tucked in his shirt, and smudge marks rather than fingerprints or glove marks were found on the window screen, “two clear smudges, like whoever had taken the screen off had something on their hands.” The officer testified that he had learned from experience that burglars often wear socks on their hands to prevent fingerprints.

These, and the other circumstances developed before the jury, such as that Ware had apparently been drinking and that the Hackneys’ neighbor directed the police to Ware walking down the road when the police came in response to a ringing burglar alarm, were sufficient to “exclude every other reasonable hypothesis save that of the guilt” of Ware of criminal attempt to commit burglary. OCGA §§ 24-4-6; 16-4-1; 16-7-1. The only other reasonable hypothesis, that Ware had stayed overnight with his sister and brother-in-law and had left to look for a job, collapsed in the mire of his inconsistent statements and the otherwise uncontradicted evidence that he had not spent the night there.

We conclude the evidence was sufficient to sustain the conviction. The relevant inquiry here is not only whether the evidence is sufficient for a rational trier of fact to find the defendant guilty beyond a reasonable doubt under Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). Certainly no conviction can stand under the Federal Constitution if it fails to satisfy the standard of review set out in Jackson. However, in cases based solely on circumstantial evidence, the State of Georgia requires that “[t]o warrant a conviction on circumstantial evidence, the proved facts shall not only be consistent with the hypothesis of guilt, but shall exclude every other reasonable hypothesis save that of the guilt of the accused.” OCGA § 24-4-6. The Georgia standard provides additional protection to those accused of crimes solely on circumstantial evidence, and thus provides the relevant standard of review. See Creamer v. State, 229 Ga. 511, 515 (192 SE2d 350) (1972) (Georgia may elect to give its citizens more protection, but not less, than the United States).

In applying the relevant standard, “[t]o sustain the judgment of conviction, the evidence need not exclude every inference or hypothesis except guilt of the accused, but only reasonable inferences or hypotheses, so as to justify the inference, beyond reasonable doubt, of guilt. Rogers v. State, 139 Ga. App. 656, 659 (229 SE2d 132). Questions as to reasonableness generally are to be decided by the jury which heard the evidence and where the jury is authorized to find that the evidence, though circumstantial, was sufficient to exclude every reasonable hypothesis save that of guilt, the appellate court will not disturb that finding, unless the verdict of guilt is unsupportable as a matter of law. [Cits.]” Pratt v. State, 180 Ga. App. 389, 390 (348 SE2d 922) (1986). “If [the evidence is] separated, and divided into segments, no one segment would be sufficient to convict. But when added together, as a whole it is süfficient to warrant a conviction, and it excludes every other reasonable hypothesis save that of guilt of the accused. [Cits.]” Huncke v. State, 137 Ga. App. 299, 301 (4) (223 SE2d 492) (1976).

The trial court correctly denied the motions for a directed verdict of acquittal and for a new trial and confirmed the verdict of the jury.

2. In his second enumeration of error, appellant contends the trial court erred by failing to exclude statements he made to police, which he claims were not voluntary and given in violation of the requirements of Miranda v. Arizona, 384 U. S. 436 (86 SC 1602, 16 LE2d 694) (1966). The trial court held a pre-trial hearing pursuant to Jackson v. Denno, 378 U. S. 368 (84 SC 1774, 12 LE2d 908) (1964). The evidence showed that the initial police questioning and responses given by Ware prior to his arrest were within the limited scope of a justifiable stop and threshold investigation into whether the appellant should be detained as a suspect in the attempted burglary. They were not part of a custodial interrogation within the ambit of Miranda. Williamson v. State, 171 Ga. App. 904 (321 SE2d 762) (1984); Webb v. State, 179 Ga. App. 101 (345 SE2d 648) (1986). The statements by Ware after his arrest were made after the Miranda warnings had been given and appellant had signed a waiver and agreed to make a statement. Based on the evidence, the trial court was authorized to find that the statements were voluntary and that the requirements of Miranda were satisfied. Kincey v. State, 191 Ga. App. 300, 301-302 (381 SE2d 439) (1989).

Decided December 5, 1990.

Bates, Kelehear & Starr, Harlan M. Starr, for appellant.

Jack O. Partain III, District Attorney, Kermit N. McManus, Assistant District Attorney, for appellee.

Judgment affirmed.

Pope and Beasley, JJ., concur.


text:
    A90A2233.
    MILLER et al. v. TRAMMELL.
    (400 SE2d 387)
   Pope, Judge.

Plaintiff Horace Trammell entered into a written agreement with defendant Gary M. Miller, as president of 007 Landfill, Inc., under which Miller leased certain property owned by Trammell for the purpose of operating a landfill. Approximately one year after the business had been in operation, Trammell filed a dispossessory action against Miller and the corporation alleging violations of the lease. Defendants appeal the grant of summary judgment to Trammell and we affirm.

1. Paragraph 4 of the lease contract provided that the payments for the use of the property would be 50 percent of the profits generated from the operation of the landfill, to be paid weekly; and that in addition to said lease payments, “Lessors shall be entitled to fifty (50%) percent of all proceeds from the sale of dirt, soil, or rock from the premises, payable and verifiable in the same manner as proceeds from the landfill operations.” Defendant corporation was obligated to “keep and maintain complete written records on each transaction. . . .”

Trammell asserted, among other allegations, that defendants had breached the lease provisions of paragraph 4 by letting customers haul away dirt from the landfill at no cost, charging only a fee to load the dirt which was not shared with Trammell. As no written records were kept of these transactions, Trammell was unable to ascertain the exact amount defendants had failed to pay him. The trial court ordered the dispossession, finding as a matter of fact and law that defendants breached paragraph 4 of the lease calling for the payment of rent; and that, specifically, “the practice of giving away the dirt from the landfill and charging a fee for loading the same, without compensating the plaintiff in any manner violates the clear and unambiguous language of the lease.”

Defendants contend the grant of summary judgment on this issue was erroneous because Trammell did not carry his burden as movant to show whether there had been any sale of dirt. They argue the court incorrectly construed the lease to provide that any removal of dirt constituted a sale of dirt. From the hearings on the motion and the depositions of the parties it was clear to the trial court, as it is to this court on review, that the defendants’ stratagem was to give away the dirt without the authorization of the lessor and charge for loading it on the customers’ trucks in order to avoid the payment of 50 percent of the proceeds as required by the lease. Miller himself unequivocally testified he was giving away the dirt and charging for his services, and that no written records were kept of this enterprise. Thus no question of material fact remains as to how the transactions took place, nor that Trammell received no compensation for the dirt removed from the landfill in violation of the rent provision of the lease agreement.

“ ‘When the movant for summary judgment presents evidence which shows that there is no genuine issue of material fact, the movant has met his burden, and the burden then shifts to the other party to present any alternative theories, if such exist, . . . within which genuine issues of fact remain.’ [Cit.]” Savannah Bank & Trust Co. v. Weiner, 193 Ga. App. 616, 617 (2) (388 SE2d 725) (1989). Accord Jarrett v. Butts, 190 Ga. App. 703 (6) (b) (379 SE2d 583) (1989). Since defendants failed to come forward with any rebuttal evidence on this issue, the trial court correctly granted summary judgment to Trammell on his writ of dispossession. See Main Station v. Atel I, 190 Ga. App. 205 (2) (378 SE2d 393) (1989).

2. We are compelled to regard this appeal to be frivolous and interposed only to delay the enforcement of the trial court’s order granting possession of the leased property to plaintiff lessor. Consequently, pursuant to Rule 26 (b) of the Rules of the Court of Appeals of Georgia, we assess a penalty of $500 against defendants-appellants for filing a frivolous appeal. The lower court is hereby directed to enter judgment against the defendants-appellants in the amount of $500 upon the return of the remittitur in the case. See Lamb v. United States Sales Corp., 194 Ga. App. 333 (3) (390 SE2d 440) (1990).

Decided December 5, 1990.

Richardson, Chenggis & Constantinides, George G. Chenggis, for appellants.

Bramblett & Findley, Martin B. Findley, for appellee.

Judgment affirmed with direction.

Deen, P. J., and Beasley, J., concur.