Guy v. State

• Decision Date: 08 March 1976
• Docket Number: No. 51586,No. 1,51586,1
• Parties: Dorothy J. GUY v. The STATE
• Court: Georgia Court of Appeals

Page 492

225 S.E.2d 492

138 Ga.App. 11

Dorothy J. GUY v. The STATE.

No. 51586.

Court of Appeals of Georgia, Division No. 1.

March 8, 1976.

Byrd, Groover & Buford, Garland T. Byrd, Macon, for appellant.

Stephen Pace, Jr., Dist. Atty., Perry, for appellee.

STOLZ, Judge.

The defendant appeals from her conviction of theft by deception, perpetrated by periodically taking cash from her employer's cash drawer and attempting to cover the shortages by depositing therein credit vouchers which she had had authorized by various co-workers, then signed thereon the names of fictitious customers herself.

1. The trial judge did not err, as is contended in enumerated error 1, in denying the defendant's motion to suppress as evidence her application for employment and various job interviews in the files of her employer from whom she stole the money, and her application for unemployment insurance after her employment with the employer was terminated. It is urged that these documents were inadmissible because they were executed with the understanding that they would be confidential, and because their intended use, as a standard of comparison by which an expert witness would testify that the purported customers' signatures on the credit vouchers were all in the defendant's handwriting, would violate her right against self-incrimination.

The statute controlling the exclusion of privileged communications in not Code § 37-707, as the appellant argues, but Code § 38-418. The latter statute does not enumerate as privileged communications those between an applicant for a job and the prospective employer or between an applicant for unemployment insurance and the state department of labor. We have found no cases establishing such communications as privileged. Furthermore, the scope of the exclusion of this statute is the content of the communications, whereas the documents here sought to be excluded were to be used for the limited purpose of a comparison of the handwritings, as is authorized by Code §§ 38-708 and 38-709.

Nor did the admission of these documents constitute compelling the defendant to furnish evidence against herself. The defendant voluntarily affixed her signature upon the documents in question. The fact that she might not voluntarily surrender such documents does not mean that their production by the state is compelling her to furnish them. 'In each of those cases (involving violation of the right against self-incrimination) the defendant was required to perform some act. Drive a truck upon scales, place his foot in a shoe track, etc., and, as emphasized in (Aldrich v. State, 220 Ga. 132, 134, 137 S.E.2d 463), the 'doing of an act' against his will to incriminate himself.' Creamer v. State, 229 Ga. 511, 517, 192 S.E.2d 350, 354. 'The distinction is that the person from whom they are taken is not forced to do anything; he remains passive; he is not compelled to act.' Green, The Georgia Law of Evidence, § 155, p. 389, and cases cited in fn. 185.

2. It was not error, as claimed in enumerated error 2, to admit in evidence 147 of the credit vouchers filled in by the defendant, even though the expert witness could testify that only three of them had signatures thereon forged by the defendant. The expert witness' testimony that the signatures on the remaining vouchers did not represent normal writing habits, plus the evidence of the letters from the employer to the purported customers which were returned by the postal service marked 'No such address' and 'Addressee unknown,' made these vouchers all relevant and material to the issue and admissible. Furthermore, even 'where the relevancy or competency of evidence is doubtful, it should be admitted and its weight left to the determination of the jury. Lovejoy v. Tidwell, 212 Ga. 750, 751, 95 S.E.2d 784 and cit.' Cravey v. J. S. Gainer, etc., Co., 128 Ga.App. 465(4), 197 S.E.2d 171.

3. It was not error, as urged in enumerated error 3, to admit in evidence letters written by the employer to various ones of the purported customers whose forged signatures appeared on the credit vouchers filled in by the defendant, which letters were returned to the employer by the postal service rubber stamped 'No such address' or 'Addressee unknown.'

The employer's retail store controller testified that such letters were randomly mailed out in the regular course of their business for the dual purposes of checking on customer satisfaction and auditing control over forged credit vouchers. The so-called uniform business records as evidence Act, Code Ann. § 38-711 (Ga.L. 1952, p. 177), provides, 'This section shall be liberally interpreted and applied.' For applications similar to that in the case at bar, see Allstate Ins. Co. v. Buck, 96...