Lester v. State, 55296

• Decision Date: 04 April 1978
• Docket Number: No. 55296,No. 3,55296,3
• Citation: 244 S.E.2d 880,145 Ga.App. 847
• Parties: Junior C. LESTER v. The STATE
• Court: Georgia Court of Appeals

Page 880

244 S.E.2d 880

145 Ga.App. 847

Junior C. LESTER v. The STATE.

No. 55296.

Court of Appeals of Georgia,Division No. 3.

April 4, 1978.

Rehearing Denied May 5, 1978.

Walter E. Baker, Hawkinsville, for appellant.

Stephen Pace, Dist. Atty., Miriam D. Wansley, Asst. Dist. Atty., Perry, for appellee.

BANKE, Judge.

The appellant appeals the denial of his motion for new trial following his conviction for first degree arson.

1. On February 17, 1976, a home owned by the appellant, but in the exclusive possession of his wife under a divorce decree dated October 1, 1975, burned to the ground. The wife testified that the appellant had previously threatened to burn the house down if he were forced to move out. In December 1975, the appellant purchased his first fire insurance policy on the dwelling, in an amount two and a half times the property's appraised value. In January of 1976, the appellant and a woman posing as his wife spoke with a Macon real estate salesman about purchasing a home, stating that the down payment would be made with insurance proceeds coming to him from property that had been destroyed by fire. Approximately three months after the fire, the appellant gave a sworn statement in which he denied having talked with this salesman. However, he admitted at trial that such a conversation had taken place.

Immediately prior to the fire, two neighbors observed a man enter and leave the dwelling in a surreptitious manner. An insurance investigator who was qualified as an expert in fire investigations testified that, in his opinion, the fire was of incendiary origin.

The above evidence, while circumstantial, was sufficient to authorize the verdict. See generally Pinson v. State, 235 Ga. 188, 219 S.E.2d 125 (1975); Ridley v. State, 236 Ga. 147(1), 223 S.E.2d 131 (1976). The fact that the appellant presented witnesses in support of an alibi defense does not require a different ruling. "The credibility of the testimony adduced in support of the alibi being a matter exclusively for the jury, it cannot be said that the conviction of the accused was contrary to the evidence or without evidence to support it." Jordan v. State, 18 Ga.App. 44(1), 88 S.E. 825, 825 (1916). See also Helton v. State, 46 Ga.App. 340, 167 S.E. 719 (1932).

2. Prior to trial, the appellant moved to suppress as evidence some pieces of copper tubing which the fire investigator had taken from the ruins of the house. Even assuming arguendo that the appellant had standing to object to a search of these premises, it was not error to overrule the motion. The investigator was dispatched by a private firm at the behest of the fire insurance company. He was not connected with any law enforcement agency, nor did he communicate with one prior to conducting his investigation. Therefore, the search could not have violated his Fourth Amendment rights. See Burdeau v. McDowell, 256 U.S. 465, 41 S.Ct. 574, 65 L.Ed. 1048 (1921); Tootle v. State, 135 Ga.App. 840, 219 S.E.2d 492 (1975).

3. The appellant assigns as error the admission over objection of a certified copy of his prior felony conviction for theft-by-taking.

"Evidence as to an offense other than that charged against a defendant is not admissible for the purpose of showing his guilt of the offense of which he stands accused, unless the evidence as to the other offense is offered for the purpose of proving and tends to show a common design, scheme, plan, or purpose, or some other rational connection with the offense for which he is being tried. (Cits.) Where the good character of a defendant is put in issue, evidence as to general bad character with respect to the particular trait may be shown in rebuttal; but in so doing it is not permissible to prove specific acts, except on cross-examination for the purpose of testing the knowledge of the defendant's witnesses, and except for the purpose of impeaching knowingly false statements made by the defendant himself to the jury or by his witnesses on cross-examination. (Cits.)" Mimbs v. State, 189 Ga. 189(2), 192, 5 S.E.2d 770, 772 (1939). See Code § 38-415; Lyles v. State, 215 Ga. 229(2), 109 S.E.2d 785 (1959). For a general review of the rule against the admission of prior convictions and its exceptions, see the dissenting opinion by Judge Townsend in Hodges v. State, 85 Ga.App. 617, 623-626, 70 S.E.2d 48 (1952).

In admitting the prior theft conviction in this case the trial court apparently determined that the appellant had placed his character "in issue" both by cross examining his wife concerning his previous arrests for failure to pay child support and by producing an alibi witness who testified on cross examination by the state that she had committed adultery with him. We cannot agree. The appellant made no attempt to elicit any testimony from either of these witnesses to show that he was a person of good character, nor did he himself make any statement suggesting such a motion. Thus, it is difficult to ascertain how he could have created an issue as to his character.

The state has cited several cases holding that a criminal defendant who admits to past convictions on the witness stand thereby opens the " character...