Gaines v. State

• Decision Date: 05 February 1986
• Docket Number: No. 71438,71438
• Parties: GAINES v. The STATE.
• Court: Georgia Court of Appeals

Page 252

341 S.E.2d 252

177 Ga.App. 795

GAINES v. The STATE.

No. 71438.

Court of Appeals of Georgia.

Feb. 5, 1986.

Rehearing Denied Feb. 13, 1986.

Certiorari Denied March 5, 1986.

Virginia W. Tinkler, Decatur, for appellant.

Robert E. Wilson, Dist. Atty., Barbara Conroy, R. Stephen Roberts, Asst. Dist. Attys., for appellee.

BIRDSONG, Presiding Judge.

The defendant, John Gaines, appeals his conviction of the offenses of theft by taking and the unauthorized practice of law. The indictment charged Gaines "did take FOUR THOUSAND NINE HUNDRED AND TWENTY-FIVE DOLLARS ($4,925.00) in money, the property of Mary Ann Thompson ... with the intention of depriving said owner of said property...." (Emphasis supplied.) The count alleging the unauthorized practice of law charged Gaines with unlawfully using the title of "attorney" in such a manner as to convey the impression he was entitled to practice law or furnish legal advice, services, or counsel.

Gaines was introduced to Ms. Thompson by a mutual friend. Ms. Thompson said the friend introduced Gaines as a "lawyer." The friend denied this but admitted: "I just kind of gathered that he was kind of an attorney or something like that." Ms. Thompson had some difficulty with a tenant in a house she owned in Tennessee and she said Gaines volunteered to help her, "[a]s my attorney." He did not charge her anything, but advised her "lawyers, you know, did things like this for people that were having a hard time...." Gaines prepared a bill of sale for her and arranged for a sale of her property through a realtor in Tennessee. Gaines identified his signature on a letter to the realtor, enclosing the sales contract, which read: "John Gaines, Attorney for Ms. Thompson." He said it was his signature but the line following his name, "Attorney for Ms. Thompson" was not on the letter when he signed it. Ms. Thompson said Gaines brought her a check in the amount of $6,000 from the sale of the house and instructed her to indorse it and write on the back of the check: "Constitutes loan payment from John Gaines." She asked him the purpose for this and he replied "trust me." He told her he was going to put the money down on the purchase of a house. She began pressing him for a return of the money and he gave her $300. Later he returned small amounts totalling about $1,000. She told her children about her problem and one daughter spoke to Gaines and asked him if he had the money from the sale of her mother's house. Gaines said "he did not have it to give to her right now," but she saw Gaines give her mother some money. She asked Gaines for a document stating he had the money but he said he would not say he would sign anything. A complaint was sworn out and this indictment followed.

Gaines testified that Ms. Thompson was a drug dealer. She was about to lose her home in Tennessee and he loaned her $1,500 in cash to fix up the house so she could sell it. Their relationship became "romantic." He witnessed Thompson use a needle to inject drugs, take other drugs orally, and smoke marijuana. He saw as many as 25 [177 Ga.App. 796] to 30 people in one evening purchase drugs from her. They paid $30 to $40 for packets of drugs. Gaines testified that Ms. Thompson said her drug supplier was going to kill her if she did not pay her drug bill. She wanted to sell her house to pay off her drug bill. When she received the $6,000 check from the sale of the house, she gave it to him. He deposited the check in his checking account. He had loaned her approximately $8,000 and she still owes him $2,000. He gave her $3,000 in cash one time, and $1,500 in cash on another occasion. He has no documentation to show that Ms. Thompson borrowed the money. He is not an attorney. He is an auto mechanic but is currently out of work. He testified he was out of work when he was lending the money to Ms. Thompson.

The defendant's son, Johnny, now 17 years of age, testified that Ms. Thompson called him at their home and asked him for money. He was then working as a security guard and took her $200. He lent her a total of $500. He asked her for a receipt but did not get one. When he refused to lend her more money, she threatened to have his father put in jail. The signatures on the letter and the check were not like his father's signature.

Mrs. Leigh Nash, 75 years of age, met Gaines in 1980. He advised her he was a lawyer and she should fire her present attorney and he would settle her husband's estate. He collected her rent payments but did not turn the checks over to her. She spoke to the tenants and they thought Gaines owned the building. She gave Gaines $400 to have her carport re-roofed. It has never been done. She gave him money to pay off her husband's funeral and doctor's bills. They were not paid. He borrowed $2,000 from her to purchase some land. He has never repaid the loan. She let Gaines have $6,500 to start building some condominiums. It has not been repaid. He took her car to have the transmission repaired. She gave him $352 for parts. He did not return the car until she threatened to take out a warrant for his arrest. The car was returned, without a transmission, battery, and some of the tires.

Gaines appeals his convictions. Held:

1. Gaines alleges the court erred in charging the jury the entirety of OCGA § 16-8-2, arguing that such charge authorized the jury to find him guilty "for a crime not included in the indictment." Our code sets forth two methods of commission of a "theft by taking." The first mode is committed by one who "unlawfully takes" the property of another with the intention of depriving him of the property. The same crime may be committed by one "being in lawful possession thereof [who] unlawfully appropriates any property of another with the intention of depriving him of the property." The state elected to charge Gaines with the first method by indicting him on a charge of unlawfully taking the property of Ms. Thompson. However, the court gave in charge to the jury both methods of how the offense could be committed and then gave a further explanation of the word "deprive" in considering the second method, as "without justification to withhold property of another permanently or temporarily or to dispose of the property so as to make it unlikely that the owner will recover it." The trial court did not give a limiting instruction thereafter as to which of the two methods the jury could consider. The defendant argues that this charge was error as a matter of law. We agree.

"Conviction upon a charge not made would be sheer denial of due process." DeJonge v. Oregon, 299 U.S. 353, 362, 57 S.Ct. 255, 259, 81 L.Ed. 278. It is reversible error to deprive a defendant of his right "to be tried for a felony only on charges presented in an indictment returned by a grand jury." Stirone v. United States, 361 U.S. 212(b), 80 S.Ct. 270, 4 L.Ed.2d 252. The state elected to charge defendant with the "unlawful taking" method of "theft by taking." "The state thus was bound by its election. To expose [an accused] to conviction of another form of [theft by taking] than that alleged would be to countenance a material variance between the allegata and the probata, a result that has been prohibited and condemned by this state. Walker v. State, 146 Ga.App. 237, 239-243 (246 SE2d 206)." Griffin v. State, 168 Ga.App. 696, 699, 310 S.E.2d 278.

In Walker, supra, we emphasized that a charge can be misleading to a jury "where it gives several definitions of the offense for which [an] accused is being tried." 1 Reid's Branson Instructions to Juries 293, 296, § 103. "It is reversible error for the court to submit a case to the jury upon a theory entirely different from that claimed in the [indictment or accusation]...." 1 Blashfield's Instructions to Juries 215, § 94; accord 1 Reid's Branson Instructions to Juries 347, § 118. Even our earlier Georgia cases required " '[i]f the indictment sets out the offense as done in a particular way, the proof must show it so, or there will be a variance.' " Fulford v. State, 50 Ga. 591, 593. The trial court erred in giving the entire code section in charge, emphasizing and explaining words in a method of commission of the offense which was not charged, and in failing to give a limiting instruction concerning which method could be considered by the jury. Owens v. State, 173 Ga.App. 309, 312, 326 S.E.2d 509; Hack v. State, 168 Ga.App. 927(3), 311 S.E.2d 211; Searcy v. State, 168 Ga.App. 233(1), 308 S.E.2d 621; Cantrell v. State, 162 Ga.App. 42, 43, 290 S.E.2d 140; Robinson v. State, 152 Ga.App. 296, 262 S.E.2d 577.

The state contends that defendant "did not reserve his objections to the charge," and that any possible error in the giving of the alternative methods of commission of the theft by taking offense was cured by the subsequent instruction by the court when it instructed the jury if they "should believe beyond a reasonable doubt that the defendant is guilty, as charged...."

Addressing the last issue first, we note that the court charged on the complete statute of theft by taking, then the meaning of the word "deprive" as it was used in the method not charged in the indictment, and concluded his charge on theft by taking by advising the jury that it is a defense to theft by taking that the defendant acted under an honest claim of right to the property. Thereafter, the court charged on the unauthorized practice of law--limiting his charge to the two types of unauthorized practice alleged in the indictment--even though the statute lists six types. The court then gave a charge on good character in which it instructed that "if the jury should believe beyond a reasonable doubt that the defendant is guilty as charged, even though there is evidence of good character, you would be authorized to convict him, even though there is evidence of good character." (Emphasis supplied.) The state contends that the italicized portion of the charge on good character cures any error in...