Clark v. State

• Decision Date: 08 March 1976
• Docket Number: No. 1,No. 51559,51559,1
• Citation: 138 Ga.App. 266,226 S.E.2d 89
• Parties: Curtis CLARK v. The STATE
• Court: Georgia Court of Appeals

Page 89

226 S.E.2d 89

138 Ga.App. 266

Curtis CLARK v. The STATE.

No. 51559.

Court of Appeals of Georgia, Division No. 1.

March 8, 1976.

Rehearing Denied March 31, 1976.

T. Edward Smith, Sampson Oliver, Jr., Atlanta, for appellant.

Lewis R. Slaton, Dist. Atty., Joseph J. Drolet, H. Allen Moye, Asst. Dist. Attys., Atlanta, for appellee.

STOLZ, Judge.

The defendant appeals from his conviction of theft by taking.

1. Rule 18(c)(2) of the rules of this court provides: 'Any enumerated error which is not supported in the brief by citation of authority or argument shall be deemed to have been abandoned.' Rule 16(a) provides in part: 'The brief for the appellant . . . must be filed with the clerk within 20 days after the appeal . . . is docketed in this court . . . No extension of time will be granted except for providential cause or its equivalent.' The appellant failed to file his brief until 12 days after the expiration of a 10 day extension of time granted by this court. The state's contention-that the enumerated errors were all abandoned, under the provisions of Rule 18(c)(2), supra, by the fact that there was no appellant's brief filed within the time allowed-would be meritorious except for the fact that, in spite of their mandatory language, the procedural rules of this court have been treated by the federal courts, and thence by our court, as merely directory in criminal cases. Consequently, we will consider the enumerated errors notwithstanding our rules to the contrary.

2. At the conclusion of the state's evidence, defendant's counsel made an oral motion 'to dismiss this action on the grounds this violates the Constitution of the United States which prohibits imprisonment for debt.' The motion was not timely made, was oral rather than written, and did not state which constitutional provisions were allegedly violated or the offending statute. See Waters v. State, 226 Ga. 278, 174 S.E.2d 420; Abel v. State, 190 Ga. 651, 653, 10 S.E.2d 198; Harris v. State, 147 Ga. 489(1), 94 S.E. 572; Cohen v. State, 7 Ga.App. 5(3), 65 S.E. 1096. Thus, the enumeration of error based on the order denying the defendant's counsel's motion to dismiss is insufficient to present any issue for decision.

3. It was not reversible error, as urged in enumerated error 6, to admit in evidence certain bank records over the objection that the name of the custodian of the records, whose testimony authenticated the records, had not been on the list of witnesses furnished to the defendant. The state had given the defendant notice that a certain person would testify as the custodian of the records. Prior to introducing that testimony, however, the state learned that another person was actually the custodian of the records. The court was notified of this and assured by the district attorney that the testimony to be given by the new witness would be identical to that of the witness of whom the defendant had notice.

' The purpose of Code Ann. § 27-1403 requiring that the defendant be furnished on demand with a list of witnesses to be used against him is to protect him from being surprised by evidence which he then has no chance to refute.' Upton v. State 128 Ga.App. 547(3), 197 S.E.2d 478. 'This statute must be subject to a reasonable interpretation,' (Elrod v. State, 128 Ga.App. 250, 252(2), 196 S.E.2d 360, 361), and the doctrine of harmless error is applicable to it. Kitchens v. State, 134 Ga.App. 81(2), 213 S.E.2d 180 and cits.

Since the defendant had been put on notice that the bank records, to which he had or could have obtained access, were to be introduced, no harm resulted to the defendant from merely substituting the testimony of the true custodian of the records, which was identical to what the designated witness would have given and the sole purpose of which was to satisfy the technical legal requirement of authentication of such evidence. Cf., Yeomans v. State, 229 Ga. 488(1), 192 S.E.2d 362.

4. The indictment charged that the defendant 'did unlawfully take one thousand dollars in money of the value of $1,000 and the property of Calvin Graves, with the intention of depriving said owner of said money . . .' The trial judge charged the provisions of Code Ann. § 26-1802(a), supra, as follows: 'A person commits theft by taking when he unlawfully takes or, being in lawful possession thereof, unlawfully appropriates any property of another with the intention of depriving him of said property, regardless of the manner in which said property is taken or appropriated.' The appellant contends in enumerated errors 7 and 8 that it was error to fail to define unlawful taking, to fail to charge that the state had failed to show an unlawful taking as it was required to do (appellant contends) in order to comport with the wording of the indictment, and to charge the entire provisions of § 26-1802(a).

Under the provisions of § 26-1802(a), supra, the offense is completed within the context of that subsection when a person either (1) unlawfully takes, or (2) being in lawful possession thereof, unlawfully appropriates-any property of another with the intention of depriving him of said property. Since the statute not only does not define unlawful taking, but also makes 'the manner in which said property is taken' irrelevant, the judge did not err in failing, without request, to define the term.

Nor was there a fatal variance between the indictment and the proof. 'Under § 26-1802 the gravamen of the offense is the taking of the property of another against the will of such other,' (Stull v. State, 230 Ga. 99, 100, 196 S.E.2d 7, 9), regardless of whether the property is taken or appropriated and the manner of the taking or the appropriation. Our courts will no longer tolerate such overly-technical applications of the fatal-variance rule. See Dobbs v. State, 235 Ga. 800(3), 221 S.E.2d 576; Ingram v. State, 137 Ga.App. 412(3, b), 224 S.E.2d 527. Moreover, even if part of the charge was not applicable, '(t) he giving of the entire Code section was not error where part was applicable. Highland v. State, 127 Ga.App. 518, 519, 194 S.E.2d 332.' Central of Ga. R. Co. v. Sellers, 129 Ga.App. 811, 816(5), 201 S.E.2d 485, 489.

5. Enumerated error 9 is the trial judge's denial of the defendant's motion for mistrial, made during the presentence hearing when the prosecution elicited from the defendant testimony of his acquittal in a previous case.

The judge was technically correct in denying the motion for 'mistrial,' since that motion is applicable during the course of the trial before the jury; the trial as to guilt or innocence having already been completed, the proper remedy to seek would have been for the judge to rule that such contended illegal evidence could not and would not be considered or, failing that, for a new presentence hearing, before another judge if necessary to insure that the illegal evidence not be considered.

Nevertheless, there is authority for treating this motion as one for the appropriate relief. Code Ann. § 81A-108(e)(1) (Ga.L.1966, pp. 609, 619; 1967, pp. 226, 230) provides in part that '(n)o technical forms of pleading or motions are required.' (Emphasis supplied.) In Jackson v. State, 64 Ga. 344(1) and Bryant v. State, 224 Ga. 235, 161 S.E.2d 312, the Supreme Court has sanctioned treating improper motions as the proper pleas, apparently under the 'elementary rule of pleading that substance, not mere nomenclature, controls.' McDonald v. State, 222 Ga. 596, 597(1), 151 S.E.2d 121, 122. See also State v. Houston, 134 Ga.App. 36(2), 213 S.E.2d 139; English v. Atlanta Transit, 134 Ga.App. 621(1), 215 S.E.2d 304.

Where evidence of illegal convictions has been admitted in presentence hearings, even without objection, our appellate courts have granted new trials on the issue of punishment. See, e.g., Clenney v. State, 229 Ga. 561(4), 192 S.E.2d 907; Fowler v. State, 132 Ga.App. 812, 209 S.E.2d 255; Harrison v. State, 136 Ga.App. 71(2), 220 S.E.2d 77. Exceptions have been made where it affirmatively appeared that the judge discounted their effect in fixing the sentence (Knight v. State, 133 Ga.App. 808(2), 212 S.E.2d 464; Workman v. State, 137 Ga.App. 746, 224 S.E.2d 757(7)), or that such evidence was brought out without objection during the trial and the defendant's counsel participated in the exchange of conversation from which the information regarding the defendant's prior conviction (which properly should not have been considered) was discussed. Mitchell v. State, 136 Ga.App. 390, 221 S.E.2d 465.

On the other hand, where the improperly considered matter consisted of less than illegal convictions (such as rumors, hearsay, innuendoes, and information not obtained from the judge's personal observation), our courts have specifically disapproved the practice, yet held it to be harmless error, based on the 'presumption, in the absence of a strong showing to the contrary, that the trial judge, when sitting without a jury, separates the legal evidence from facts not properly in evidence in reaching his decision.' Ingram v. State, 134 Ga.App. 935, 940(8), 216 S.E.2d 608, 612, citing McBryde v. State, 34 Ga. 202, 204 and Jones v. State, 233 Ga. 662(3), 212 S.E.2d 832.

Accordingly, while we specifically disapprove of the trial judge's permitting questioning as to an offense for which the defendant was known to have been acquitted, we shall adopt the presumption that the judge did not consider the improper matter in fixing his sentence, even though this presumption is weakened somewhat by his failure to disavow any reliance thereon.

6. The testimony as to proceedings before the state real estate commission was relevant to show that, at the time of the transactions between the defendant and his victim, the defendant had no valid broker's license. Moreover, even if the testimony was inadmissible, its admission in evidence was rendered harmless error by the subsequent admission in evidence, without objection, of testimony of...