Hancock v. State

• Decision Date: 17 June 1981
• Docket Number: No. 61607,61607
• Parties: HANCOCK et al. v. The STATE.
• Court: Georgia Court of Appeals

Page 401

282 S.E.2d 401

158 Ga.App. 829

HANCOCK et al. v. The STATE.

No. 61607.

Court of Appeals of Georgia.

June 17, 1981.

Diane E. Marger, Edwin Marger, Robert O. Davies, Atlanta, for appellants.

J. Lane Johnston, Dist. Atty., William F. Todd, Jr., Asst. Dist. Atty., for appellee.

McMURRAY, Presiding Judge.

Defendants Stephen Hancock, Alan W. Robbins, and Hancock-Robbins, Incorporated, a Georgia corporation, were jointly indicted, tried, and convicted of the offense of theft by deception in that they did, between February 23, 1979, and August 1, 1979, unlawfully obtain property in the amount of $54,932.81 of the Board of Commissioners of Roads and Revenues of Bulloch County, Georgia, the citizens and taxpayers of Bulloch County, Georgia, and the Library Board of the Statesboro Regional Library, with the intention of depriving said owner and owners of said property by deceitful means and artful practices in creating and confirming and causing to be created and confirmed "another's impression of an existing fact and past event which was false." The defendants allegedly knew and believed same to be false, having entered into a contract to erect a new Statesboro Regional Library, Statesboro, Georgia, and had, between the dates stated above, executed and caused to be executed certain contractors' applications for payment which contained the statement that "all amounts have been paid by him (Contractor) for Work which previous Certificates for Payment were issued and payments received from the Owner." In reliance upon said false statements of fact the owners of the library under construction "did pay certain sum and sums of money ..." to the defendants to which they were not entitled. The defendant corporation was sentenced to pay a $1,000 fine and the individual defendants were sentenced to serve a term of 2 years. Defendants then filed their motion for new trial which was amended and after a hearing denied. Defendants appeal. Held :

1. The elements of the crime here are (a) the creation or confirmation of another's impression of an existing fact or past event which is false; (b) the defendant knowing or believing same to be false; (c) same was made with intent to deceive; (d) did deceive; and (e) the party relying on such representation was thereby induced to part with his property. See Code Ann. § 26-1803 (Ga.L.1968, pp. 1249, 1290). If the only proof of an essential element of the crime with which a defendant is charged was by circumstantial evidence, the trial court should have charged the law on circumstantial evidence even without request, and failure to do so is reversible error. See McGruder v. State, 213 Ga. 259(4), 264, 98 S.E.2d 564; Jones v. State, 105 Ga. 649, 31 S.E. 574; Williams v. State, 239 Ga. 12, 13(2), 235 S.E.2d 504; Campbell v. State, 129 Ga.App. 836, 837, 201 S.E.2d 666; Nelms v. State, 150 Ga.App. 720, 721, 258 S.E.2d 531; Howard v. State, 148 Ga.App. 598, 599-600(5), 251 S.E.2d 829; Weaver v. State, 135 Ga. 317(2), 320, 69 S.E. 488; Boyd v. State, 201 Ga. 853(2), 41 S.E.2d 309. Accord, Germany v. State, 235 Ga. 836, 840-844(2), 221 S.E.2d 817.

Here the defendants made a specific written request to charge the substance of Code § 38-109 with reference to circumstantial evidence, that is, in order to warrant a conviction on circumstantial evidence "the proved facts shall not only be consistent with the hypothesis of guilt, but shall exclude every other reasonable hypothesis save that of the guilt of the accused." The sum and substance of the error enumerated here is that the trial court in failing and refusing to charge the substance of Code § 38-109 with reference to circumstantial evidence, the court erred inasmuch as the law of this state mandates that such a charge on circumstantial evidence must be given where the defendant had made a timely written request therefor. See Julian v. State, 134 Ga.App. 592, 593(6), 599, 215 S.E.2d 496; Horne v. State, 93 Ga.App. 345, 346(4), 91 S.E.2d 824; Jones v. State, 91 Ga.App. 662, 86 S.E.2d 724; Loomis v. State, 78 Ga.App. 336, 338(10), 51 S.E.2d 33. Of necessity, if any one of the essential elements shown above is based upon circumstantial evidence in order to prove same, the trial court erred in failing to charge as requested. But, even so, there was a written request to charge, and it should have been given in charge.

The thrust of the evidence here was that defendant Hancock, for the defendant corporation, had signed numerous applications and certificates for payment documents and the corporation had received in return checks (monies) as a consequence. The applications or certificates for payment stated clearly, commencing with the second payment "that all amounts have been paid ... for Work for which previous Certificates for Payment were issued and payment received from the owner, and that the current payment shown herein is due." Nonetheless, numerous creditors of the defendant contractor, many of whom testified at trial, had not been paid for services or materials. Defendants' argument by brief was that defendants had not in fact received the proceeds of these payments but had spent them to benefit the library under construction. They contend the state failed to prove that all the money obtained through these certificates had not been applied to the library job, admitting, however, that they owed numerous debts in the construction of the library which had been underbid; yet they had expended all the money on the job. Consequently, there is no evidence unless based upon the circumstances that the defendants have in anywise received any of the funds paid by reason of the certificates. See also Division 2 with reference to defendant Hancock as to knowledge of the circumstances. Based upon the facts and circumstances of this case it is clear that the trial court should have charged the substance of Code § 38-109 in order to exclude every reasonable hypothesis of guilt save that of the guilt of the defendants. This enumeration of error is meritorious.

2. In the case sub judice, each of the certificates was signed for the corporation by the defendant Stephen Hancock. The only connection between the defendant Alan W. Robbins and the defendant Hancock was that of his corporate association. Consequently, for the defendant Robbins to be guilty his conviction can be sustained only by reason of circumstantial evidence. No evidence was introduced suggesting that defendant Robbins in any way helped prepare the documents nor that he was aware of any falsity of the documents, and he could only be implicated if the corporation has benefited by the execution of the same. Again an issue of circumstantial evidence is shown.

The evidence here established that this was a small corporation having only two officers who were involved in the business transactions of the corporation. The circumstances shown were sufficient for the jury to determine, if properly charged on circumstantial evidence, that the defendant Robbins as corporate secretary was in any manner aware of receipt of monies by the corporation. Consequently, the trial court did not err in denying the motion for directed verdict of acquittal in favor of defendant Robbins. See in this connection Parker v. State, 155 Ga.App. 617(2), 271 S.E.2d 871; Wright v. State, 147 Ga.App. 111, 248 S.E.2d 183; Elam v. State, 125 Ga.App. 427, 430(2), 187 S.E.2d 920; Redwine v. State, 207 Ga. 318, 61 S.E.2d 481. Compare Birge v. State, 143 Ga.App. 632, 639(10), 239 S.E.2d 395.

3. The trial court did not err in failing to charge the full and complete language of the statute (Code Ann. § 26-1803) with reference to the last paragraph thereof which involves "puffing," as being statements unlikely to deceive ordinary persons in the group addressed. The object of the applications and certificates was to receive the funds and did not involve the sale of a product. Compare Vickers v. State, 124 Ga.App. 752, 186 S.E.2d 157; Harris v. State, 141 Ga.App. 213, 233 S.E.2d 21.

4. The certificate to obtain funds is based on statements therein that bills had been paid for which previous certificates for payment were issued and payments received from the owner "to the best of his knowledge, information and belief," said certificates being signed by the...