Chastain v. State
| Decision Date | 26 November 1985 |
| Docket Number | No. 70838,70838 |
| Citation | 339 S.E.2d 298,177 Ga.App. 236 |
| Parties | CHASTAIN v. The STATE. |
| Court | Georgia Court of Appeals |
Hylton B. Dupree, Jr., Mark A. Johnson, Stephen C. Steele, Alan G. Poole, Marietta, for appellant.
Thomas J. Charron, Dist. Atty., Jack E. Mallard, Debra H. Bernes, Asst. Dist. Attys., for appellee.
Appellant seeks the reversal of his conviction in the Superior Court of Cobb County for theft by conversion, theft by taking, and violation of oath of public office. For reasons which follow, we reverse.
1. Appellant contends that the evidence was insufficient to support a verdict of guilty on the three counts charged. We disagree.
The jury was authorized to find that John Chastain, Tax Commissioner of Cobb County, did in fact sublet space on property leased by the county for independent typists to prepare tax forms. Varying amounts of money were paid monthly by the typists to the tax commissioner, which he appropriated to his own use. Thus, the conviction for theft by taking was authorized.
The jury was also authorized to find that appellant deposited county intangible tax receipts in a local bank and received interest therefrom which he appropriated to his personal use. Thus, the conviction for theft by conversion was authorized.
Lastly on this issue, the jury was authorized to find that part of appellant's oath of office contained the following language: "I am not the holder of any unaccounted for public funds due this state." The conduct outlined in the two preceding paragraphs took place over a period of several years, and the jury would have been authorized to find that such conduct constituted a violation of appellant's oath of office. Therefore, applying the standard as to sufficiency of evidence outlined in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), we find the evidence sufficient to authorize conviction on all three charges. See McIlhenny v. State, 172 Ga.App. 419(1), 323 S.E.2d 280 (1984); Brooks v. State, 163 Ga.App. 653(1), 294 S.E.2d 727 (1982); OCGA § 16-10-1.
2. In his second enumeration of error, appellant contends that the trial court erred by failing to charge on the issue of good character. This enumeration can best be addressed by posing a series of questions:
(A) Was character an issue during the trial?
During the presentation of appellant's defense, some 13 witnesses, including a teacher, a pharmacist, a lawyer, a preacher, an auto repairman, and a businessman, testified as to appellant's character. During the testimony of one witness, the State entered an objection and in ruling on the objection, the court stated: "This is, in fact, a character witness." At another point during the trial, the court gave specific instructions to both sides as to what questions could be posed as to character. When appellant took the stand, he also testified as to his extensive church and civic involvement, his military experience, and his crime-free life, all of which went to appellant's character. See State v. Braddy, 254 Ga. 366, 330 S.E.2d 338 (1985). Clearly, character was an issue in the trial of the case.
(B) Was a request for a charge on good character made?
During the pre-trial conference, appellant's attorney specifically requested in writing a charge on character and was informed by the court that the standard charge as to character would be given. Unquestionably, a character charge was properly requested.
(C) Was there a failure to charge as to character?
A scouring search of the record fails to show any charge given as to character. This fact was acknowledged by the trial court when the jury was reconvened three days after a verdict was rendered and the jury dismissed. However, our inquiry must not end here; we must probe even further.
(D) In viewing the charge as a whole, was the issue of good character adequately covered?
The trial court charged the jury on a host of principles of law, including burden of proof, reasonable doubt, and presumption of innocence, but those principles, taken singularly or in combination, do not inform the jury that a defendant is allowed to present evidence as to his general good character; that such evidence is to be considered along with the rest of the evidence; and that good character is a substantive fact which may of itself be sufficient to generate a reasonable doubt as to the guilt of the defendant. See Suggested Pattern Jury Instructions, Vol. 2, Criminal Cases, p. 47.
(E) Did failure to charge on character amount to harmless error?
The "highly probable test" for determining harmless error is set out in Johnson v. State, 238 Ga. 59, 230 S.E.2d 869 (1976). The State contends that it was "harmless error" to fail to charge on character. Therefore, in considering this issue, we deem it beneficial to review events that transpired during trial.
In the opening statement of appellant's counsel, the jury was informed that character would be an issue and that the trial judge would charge them as to what consideration should be given to character. Throughout the proceedings the trial judge called the jury's attention to its responsibility as a trial jury. During preliminary remarks explaining the operation of the court, the jury was informed as follows: "Then I will instruct you as to the applicable law on the case and you will then retire to consider your verdict." Later, the court charged the jury: "I further instruct you that the law as given to you by the court states the only law for your guidance and it is your duty to accept and follow that law by determining the facts from the testimony you hear and from other evidence introduced in Court and apply then the law to the facts." At another point the court charged: "You are not to consider and you must not consider any evidence to which an objection has been sustained or which I have instructed you to disregard." Clearly, at the earliest stage and throughout the trial, the jury was told in no uncertain terms that it was not to consider matters ruled out or not sanctioned by the court. It was against this backdrop that the issue of character loomed large during the trial of the case. Therefore, since the issue of character played so significant a role during trial, we cannot say, in applying the Johnson test, that it is highly probable that the failure to charge on good character did not contribute to the judgment.
Because many criminal cases give rise to a display of emotions which could have an adverse effect on the proceedings in the absence of tried and true procedures, adherence to procedural rules is the heart of criminal...
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Barrett v. State
...of the crime, terminates a prosecution as indicated in Robinson. To the same effect and similar circumstances, see Chastain v. State, 177 Ga.App. 236, 339 S.E.2d 298 also cited in Likewise, in Gunn v. State, 227 Ga. 786, 183 S.E.2d 389, cited by the court in Robinson, there was no valid law......
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Robinson v. State
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Lucas v. State
...evidence. Having adduced evidence of good character, Lucas was entitled, upon request, to a charge on the subject. Chastain v. State, 177 Ga.App. 236(2), 339 S.E.2d 298 (1985). At the hearing on his motion for new trial, Lucas's trial counsel admitted that, having put on four character witn......
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Cooper v. State, A92A1125
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