Garrett v. State

Decision Date27 March 1979
Docket NumberNo. 34377,34377
Citation253 S.E.2d 741,243 Ga. 322
PartiesGARRETT et al. v. The STATE.
CourtGeorgia Supreme Court

Nixon, Yow, Waller & Capers, D. Field Yow, John B. Long, Wilson & Trotter, William A. Trotter, III, Augusta, for appellants.

Richard E. Allen, Dist. Atty., for appellee.

UNDERCOFLER, Presiding Justice.

We granted certiorari in this case to consider divisions 6 and 7 of the Court of Appeals opinion in Garrett v. State, 147 Ga.App. 666, 250 S.E.2d 1 (1978). Division 6 raises the question whether the husband of a government employee who converted court money can be sentenced under the harsher (1 to 15 years) terms of Code Ann. § 26-1812(b) for participating in the theft by the government employee or must be sentenced under the more lenient (1 to 10 years) provisions of Code Ann. § 26-1812(a). Division 7 involves the propriety of using the Garretts' income tax returns under Code Ann. §§ 92-3216 (Supp.1978) and 92-8414, making income tax returns privileged unless the return itself is in issue. We affirm for the reasons set out below.

1. As deputy clerk of the State Court of Richmond County, Marie Garrett's responsibilities included collecting and recording fines and forfeitures for the court. She and her husband, who was not a government employee, were convicted on eight counts of embezzling court funds and sentenced to 15 years on each count; Marie Garrett's, with 5 years on count 2 to run consecutively to count 1 and the rest concurrently and Stewart Garrett's, all to run concurrently. He appealed, claiming the trial court erred in sentencing him to 15 years under Code Ann. § 26-1812(b) fixing the maximum punishment at 15 years where a theft is committed by a government employee, since he was not so employed. Code Ann. § 26-1812(a) generally sets the maximum at 10 years for most thefts of over $100 in value. 1

The general rule is stated in 26 Am.Jur.2d 558, Embezzlement, § 7: "Where a statute abrogates the distinction between accessories and principals and makes principals all who are guilty of acting together in the commission of a crime, . . . even persons who are not employees or subordinates, of public officers, who act with such officers in embezzling public funds, may be prosecuted as principals, although the embezzlement statutes are applicable in terms only to the official custodians of the funds." Accord, Gibbs v. Arizona, 37 Ariz. 273, 293 P. 976, 74 A.L.R. 1105 (1930); England v. State, 23 Ala.App. 361, 125 So. 687 (1930). We find this rule is also applicable in Georgia.

In Bishop v. State, 118 Ga. 799, 45 S.E. 614 (1903), we held that, although only officers or employees could be principals in the first degree to embezzlement, other unrelated persons could also be guilty of the same crime in the second degree or as accessories. In 1968, the General Assembly abolished the distinctions among principals in the first and second degree and accessories before the fact and made them all parties to the crime. Code Ann. § 26-801; Hannah v. State, 125 Ga.App. 596, 188 S.E.2d 401 (1972). Therefore, Stewart Garrett was appropriately charged 2 with theft by conversion under Code Ann. § 26-1808. 3 Since Garrett may be convicted as a party to the crime of conversion, without first "having lawfully obtained the funds. . . .," Code Ann. § 26-1808, it necessarily follows that he may also be punished without having been a government employee "if the property was taken by . . . an officer or employee of a government . . . institution," Code Ann. § 26-1812(b). The increased punishment under this section is not limited to persons, in this case government employees, but to the situation, whether the property was taken by a government employee. Therefore, the Court of Appeals correctly held that the trial court was authorized to sentence Stewart Garrett to 15 years on each count of conversion for which he was found to be a party.

2. The second question on which the court granted certiorari involves the acquisition of the Garretts' joint State income tax returns by subpoena duces tecum from the Department of Revenue. The Attorney General made a notion to quash the subpoena, which the trial court overruled. The Court of Appeals affirmed, finding that the trial court did not abuse its discretion in tipping the balance toward the need for disclosure over the privilege afforded tax returns under Code Ann. § 92-3216(a) (Supp.1978).

This section provides: 4 "(a) Except in accordance with proper judicial order or as otherwise provided by law, it shall be unlawful . . . to divulge or make known in any manner the amount of income or any particulars set forth or disclosed in any report or return . . . ." 5 (Emphasis supplied.) The determinative issue is whether the trial court's order is a "proper judicial order" under the statute. This language has never been interpreted by this court, but the State of New York, which has an identical statute has done so. The Attorney General of this state followed the New York construction in an opinion letter to the State Revenue Commissioner in 1971. Opinions of the Attorney General 71-184, p. 253. "It is my opinion that (these statutes) do not authorize the release of tax information for use in any manner other than a case involving the integrity of the tax return itself as the main issue, and not merely as a collateral issue." The Attorney General then quoted People v. Isaac G. Johnson & Co., 213 A.D. 402, 210 N.Y.S. 92 (1925): " 'The order therein referred to is one made by the court which becomes necessary in the actions or proceedings . . . where the publicity of the report is an inevitable incident to, and consequence of, the judicial proceeding, which would be valueless and ineffective without the publicity of the report which attend the determination of the issue and be an essential factor therein. . . . (N)o "proper judicial order" can be made except in an event when the integrity of the report itself is attacked or defended as the main, and not as a merely collateral, issue.' " Accord, New York Dept. of Tax v. New York Dept. of Law, 396 N.Y.S.2d 744 (1977); In re Fowlkes Estate, 16 Misc.2d 1043, 185 N.Y.S.2d 373 (1959); Application of Manufacturers Trust Co., 269 A.D. 108, 53 N.Y.S.2d 923 (1945). See Brackett v. Commonwealth, 223 Mass. 119, 111 N.E. 1036 (1916); Bowman v. Montcalm Circuit Judge, 129 Mich. 608, 89 N.W. 334 (1902). We agree with the Attorney General.

The legislative purpose of the enactment is to encourage voluntary and truthful reporting of income by insuring confidentiality. The strict language of the statute and the severe penalty for defaulting from its mandates emphasize a clear policy favoring nondisclosure. 6 To apply a balancing test and abuse of discretion standard of review as the Court of Appeals has in this case would seriously undermine this policy. We hold that by "proper judicial order" a court may require employees of the department of revenue to produce income tax returns and reports Only when such returns are directly in issue as set out in the statute. 7 See footnote 1, supra.

3. We find, however, that this error, even under the strict policy standards set out in Division 2, is harmless here. The information contained in the joint income tax returns for 1975 and 1976 had already been introduced in evidence from other sources. Checks from the clerk's office showed Marie's income, which she then verified on the stand; similarly, Stewart's income for 1975 through 1978 was proved by introducing his paychecks through his employer, which Stewart then verified. The 1974 tax return was used only to refresh Stewart's memory as to his earnings that year to which he testified. No other use was made of these returns at trial, although they were admitted in evidence. We see no prejudice; the returns merely verified the Garretts' income as shown by other evidence and was, therefore, cumulative. Nor do we see how the Garretts' character was put in issue by their introduction into evidence since no one questioned their accuracy. Furthermore, at trial, Marie admitted she took some money, but not as much as the state claimed. Stewart's defense was that he deposited the money under a claim of right. He thought Marie had acquired it before their marriage by inheritance from her deceased boyfriend of fifteen years, who had left the residue of his...

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    ...(1983); United States v. Gregg, 612 F.2d 43 (2d Cir.1979); Gibbs v. State, 37 Ariz. 273, 276, 293 P. 976, 977 (1930); Garrett v. State, 243 Ga. 322, 253 S.E.2d 741 (1979); State v. Nahoum, 172 La. 83, 133 So. 370 (1931); Wood v. State, 93 Okl.Cr. 282, 227 P.2d 424 (1951). See also People v.......
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    ...and not a practitioner under this Code Section, the State chose to proceed under the conspiracy statute. 3 Compare Garrett v. State, 243 Ga. 322, 253 S.E.2d 741 (1979) (State may also sentence as a party one who is not a government employee, but who conspires with an employee to breach his ......
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