Cowan v. State, 48718
| Decision Date | 27 November 1973 |
| Docket Number | No. 48718,No. 3,48718,3 |
| Citation | 203 S.E.2d 311,130 Ga.App. 320 |
| Parties | William E. COWAN v. The STATE |
| Court | Georgia Court of Appeals |
John R. Bennett, Valdosta, for appellant.
H. Lamar Cole, Dist. Atty. Valdosta, for appellee.
Syllabus Opinion by the Court
The defendant appeals from his conviction and sentence of five years' imprisonment for forgery in the second degree. All of his enumerated errors pertain to the admission in evidence in the pre-sentence hearing, over his objections, of state's exhibit 4, copies of Georgia Bureau of Investigation (now Division of Investigation) 'criminal activity histories' from the records of the Criminal Identification Division of the G.B.I. The certification of the copies states as follows: 'I certify that I am Custodian of the records of the Criminal Identification Division of the Georgia Bureau of Investigation and that the foregoing is a true and correct copy of the criminal activity history of the individual named therein as the same appears in the records of my office, this 21st day of March, 1973.' The above bore the signature, 'O. Peters,' beneath which appeared, 'Records and Identification Officer (with 'Officer' marked out) Georgia Bureau of Investigation.' Held:
1. The 'public officer,' whose certification authenticates copies of records, etc. under Code § 38-601, is not expressly required by that statute to be commissioned by the governor. Even assuming that the public officer within the Department of Public Safety nominally having custody of the G.B.I.'s records, was commissioned by the governor under Code § 89-202, '(a) deputy officer may properly certify for the chief officer nominally having custody . . .' Pressley v. State, 207 Ga. 274, 277, 61 S.E.2d 113, 115, citing 5 Wigmore on Evidence (3rd ed.), 520, § 1633(8). For this reason, the holding in Foster v. Kelly, 107 Ga.App. 801(1), 131 S.E.2d 587, does not mean that the certificate must be by a public officer personally, rather than by a deputy officer who certifies that he is the custodian of the records, as was apparently done here. This certificate was prima facie valid and there was no showing that the signer was not authorized to act either in his own capacity as a public officer or as a deputy for the chief officer nominally having custody. The elements of authentication-the authority, the incumbency, and the genuineness of the signature of the certifying custodian-approved in Mach v. State, 109 Ga.App. 154, 160(2),135 S.E.2d 467 and cit. and missing in the certification in the instant case, are applicable to records of the Federal, not the State, Government.
2. Nor were the copies of the documents inadmissible on the ground that the information represented by the entries on the documents, was conveyed to the Department of Public Safety by other governmental bodies, with no showing that the information was complete, true, accurate and up to date, and no certification by the officials within the originating governmental units. Davis v. State, 229 Ga. 509, 511, 192 S.E.2d 253, 255.
3. Code Ann. § 27-2534 (Ga.L.1970, pp. 949, 950; 1971, p. 902) provides that in the pre-sentence hearing, 'subject to the laws of evidence, the jury shall hear additional evidence in extenuation, mitigation, and aggravation of punishment, including the record of any prior criminal convictions and pleas of guilty or pleas of nolo contendere of the defendant, or the absence of any such prior criminal convictions and pleas . . .' (Emphasis supplied.) 'The nature of the pre-sentence hearing involves the 'general character' (Code § 38-202) of the defendant, and where the State has notified the defendant that such evidence will be admitted (Code Ann. § 27-2534), evidence of general bad character may be admitted.' Dudley v. State, 228 Ga. 551, 561, 186 S.E.2d 875, 882. "Where character is put in issue, the direct...
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Waddill v. Waddill
...is a deputy clerk of that court . . ." The objection was overruled and the document admitted. This court held in Cowan v. State, 130 Ga.App. 320, 321, 203 S.E.2d 311, 312, "(t)he 'public officer,' whose certification authenticates copies of records, etc., under Code § 38-601, is not express......
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...acquittal, are not legal methods of impeachment.' Whitley v. State, 188 Ga. 177, 179, 3 S.E.2d 588, 590. See, also, Cowan v. State, 130 Ga.App. 320, 203 S.E.2d 311 (1973). And, cf. Barrett v. State, 140 Ga.App. 309, 231 S.E.2d 116, decided November 3, In the present case, we believe the tri......
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Blackmon v. State
...is also authority that certification by a deputy of a public officer meets the requirements of the Code section. See Cowan v. State, 130 Ga.App. 320, 203 S.E.2d 311 (1973). But, in the instant case, we are presented with a certification by an apparent assistant to an alleged deputy of a pub......