Hawkins v. State
| Decision Date | 24 May 1983 |
| Docket Number | Nos. 66160,66269,s. 66160 |
| Citation | 167 Ga.App. 143,305 S.E.2d 797 |
| Parties | HAWKINS v. The STATE (Two cases). |
| Court | Georgia Court of Appeals |
Donald T. Robinson, Pelham, for appellant in No. 66160.
Thomas G. Ledford, Camilla, for appellant in No. 66269.
Gilbert J. Murrah, Dist. Atty., J. Brown Moseley, Asst. Dist. Atty., for appellee.
Defendants, Patricia and Robert Hawkins, appeal their convictions of 13 counts of theft by taking. Robert Hawkins was an agent for the Atlantic & Pacific Life Insurance Company (A & P). His wife, Patricia, went with him so that he could gain entrance into homes where ladies were reluctant to let a man enter. She was also "in training" to become an insurance agent and assisted him in explaining things to applicants and sometimes made out the applications. Hawkins was instructed by A & P to have all premium checks made out to A & P and to transmit the checks to the company together with the application for insurance. Hawkins was to receive one-half of the amount of the premium check as his commission. However, if the policy holder cancelled the policy within 30 days, the entire premium was returned to the applicant and the amount previously paid to the agent charged against future commissions to be paid the agent. A dispute arose between Hawkins and A & P as to the amount of charge backs placed against his account.
In the 13 counts charged against Hawkins and his wife, the defendants accepted checks from the applicants made out to A & P and deposited them in either a personal checking account or an account titled "Benefits Unlimited." Patricia and Robert Hawkins were the only persons authorized to draw checks on the "Benefits Unlimited" account. Hawkins or his wife deposited the checks in their account and then both of them withdrew the proceeds. Their checks on those accounts show that the funds were used for normal every-day expenditures, including payment of back support payments by Hawkins to children of an earlier marriage. Hawkins mailed all of the applications for insurance to A & P, together with his personal check in the amount he figured the company was supposed to receive. However, the check was made out in one written amount and a different numerical amount. Also, Hawkins testified that he didn't have enough money in his account to cover either amount. A & P returned the applications and the check to Hawkins and subsequently dismissed him. A & P refunded all funds to each applicant and took in return the cancelled checks the applicants had given Hawkins with the application for insurance.
The jury returned a verdict of guilty and the defendants bring this appeal. Held:
1. Denial of defendant's motion for continuance is enumerated as error. Both attorneys were appointed on Thursday, October 21, 1982, at approximately 11:00 a.m. The case was called for trial on Tuesday, October 26, 1982. When the case was called in the morning the court stated that trial could not begin until that afternoon, that all the witnesses were present and "I will give you all plenty of time to talk with them." One witness had not arrived at that time but was present before the case was called. Following the same objection in the afternoon, the court excused the jury and advised counsel "you can interview any and all of the witnesses as long as you want to." One witness was not present and after he arrived the court asked counsel: "... have you exhausted your desire to interview the witness...? Counsel stated: "Yes sir, we have."
At first blush, it might appear that a trial with so many counts might be complex or difficult. However, each applicant for insurance had the same evidence. She was interviewed by the defendants for nursing home insurance. An application was made out and a check was given to the defendant, made out to A & P, in payment of the first year's insurance premium. Neither defendant denied their involvement, their identity, or the fact that the application for insurance had been made out and the check received from that applicant in the amount stated, nor that those checks had not been sent to A & P, but was deposited in their personal account or the "Benefits Unlimited" account.
The decision to grant or deny a motion for a continuance is within the sound discretion of the trial court and will not be cause for reversal absent abuse of that discretion. Fleming v. State, 236 Ga. 434, 437, 224 S.E.2d 15. We find no abuse of discretion of the trial court based on the ground that counsel had not had sufficient time to prepare for trial. Burnett v. State, 240 Ga. 681, 684, 242 S.E.2d 79.
2. Counsel for the defendants and the district attorney entered into a pre-trial stipulation that in lieu of defendants filing "Brady" motions or similar discovery motions "the District Attorney will permit defendant's counsel to read and inspect his entire file on the above-styled case ... All exculpatory or arguably exculpatory information contained in said file will be copied and delivered to defendant's counsel, together with copies of scientific and lab reports and incustody statements of defendants ..."
The state called Annelle Swillen who was in charge of agents for the A & P Insurance Company. She testified that Hawkins was an agent for A & P and he had sent in applications for insurance for the persons listed in the various counts of the indictment without any money. She personally contacted each and every one of the applicants for insurance and gave them a check from A & P in return for signing a release and an assignment of their cause of action against anyone because of the check each person had given to Robert Hawkins. She also received from each person the cancelled check that they had given to Robert Hawkins to pay for insurance from A & P. The releases, assignment of action, the check given to the applicant by A & P, and the check given by the applicant to Robert Hawkins were marked as state exhibits 4 through 16. Swillen brought those exhibits to court in her briefcase.
The defendants objected to these documents on the ground that they were hearsay and that they violated "the spirit of the stipulation" signed by counsel. The state offered the testimony of Swillen to show that these documents were made in the regular course of business and we find no conflict with the offer by the state of evidence brought to court by Swillen and the stipulation which permitted defendants' counsel to inspect the district attorney's file. These enumerations are without merit.
3. The defendants objected to entry into evidence of state exhibits 40, 42, and 43. The objections made were that the exhibits were hearsay, in violation of the best evidence rule, and violated the spirit of the stipulation between counsel on discovery.
Exhibit 40 was a photostatic copy of the signature card of both defendants on file with the ...
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...within the sound discretion of the trial court and will not be cause for reversal absent abuse of that discretion. Hawkins v. State, 167 Ga.App. 143, 145(1), 305 S.E.2d 797; Fleming v. State, 236 Ga. 434, 437, 224 S.E.2d 15. Here, the evidence reflects that defendant was represented by two ......
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Commercial Union Ins. Co. v. Smith, 72766
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