Lowman v. State, A90A1102

• Decision Date: 14 November 1990
• Docket Number: No. A90A1102,A90A1102
• Citation: 398 S.E.2d 832,197 Ga.App. 556
• Parties: LOWMAN et al. v. The STATE.
• Court: Georgia Court of Appeals

Page 832

398 S.E.2d 832

197 Ga.App. 556

LOWMAN et al. v. The STATE.

No. A90A1102.

Court of Appeals of Georgia.

Nov. 14, 1990.

Earl Daniel Smith, Jr., Nahunta, for appellants.

Harry D. Dixon, Jr., Dist. Atty., George E. Barnhill, Asst. Dist. Atty., for appellee.

POPE, Judge.

Defendants Kenneth Lavoid Lowman, Gary Marvin Lowman, Craig Dewight Lowman and Stacy Marie Kearney Lowman were convicted by a jury of the offense of criminal damage to property in the first degree. Kenneth Lowman and Gary Lowman appeal from the denial of their motions for new trial. Held:

1. Defendants contend that the circumstantial evidence presented against them was insufficient to support their convictions of the offense of criminal damage to property in the first degree. "To warrant a conviction on circumstantial evidence, 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 evidence was all circumstantial. If separated, and divided into segments, no one segment would be sufficient to convict. But when added together, as a whole it is sufficient to warrant a conviction, and it excludes every other reasonable hypothesis save that of guilt of the accused. In such cases it is not necessary that the circumstances remove every possibility of the defendant's innocence." (Citations omitted.) Huncke v. State, 137 Ga.App. 299, 301, 223 S.E.2d 492 (1976). Our review of the transcript shows the evidence presented here satisfied this standard and clearly authorized any rational trier of fact to find defendants guilty of the offense charged beyond a reasonable doubt. See, e.g., Crumley v. State, 185 Ga.App. 795(1), 366 S.E.2d 171 (1988).

2. In their second enumeration of error defendants argue that the trial court erred in refusing to disqualify for cause those jurors who were members, or related to members within the prohibited degree, of the Okefenokee Rural Electric Membership Corporation, the "victim" whose property was damaged here. The State argues that any error in the trial court's ruling was harmless because defendants failed to exercise all their peremptory challenges. "However, the Georgia Supreme Court abandoned the rule espoused by the State and held that a defendant's 'failure to exhaust his peremptory strikes before the twelfth juror was impaneled does not render the error (the trial court's refusal to strike an unqualified juror) harmless.' Harris v. State, 255 Ga. 464(2), 339 S.E.2d 712 (1986). We therefore turn to the merits of [defendants'] enumeration. [Cit.]" Howard v. State, 191 Ga.App. 418, 419(2), 382 S.E.2d 159 (1989). See also Bass v. State, 183 Ga.App. 349, 358 S.E.2d 837 (1987).

The provisions governing the organization of and membership in an electric membership corporation are codified at OCGA § 46-3-170 et seq. OCGA § 46-3-260 makes membership in the electric membership corporation mandatory for those who receive or have agreed to receive electric service from the corporation. Members of the corporation have the right to vote (OCGA § 46-3-266), to bring derivative actions (OCGA § 46-3-272), and to remove directors and certain officers and agents (OCGA §§ 46-3-295 and 46-3-302(b), respectively). Although OCGA § 46-3-340(a) provides that electric membership corporations are operated without profit to their members, subsection (c) of that provision mandates that the bylaws of the corporation "contain provisions, consistent with subsection (a) of this Code section, for accounting for, allocating, assigning and disposing of its revenues and assets and may establish classes of members for such purposes." A mechanism is also provided for returning revenues upon the death of a member (OCGA § 46-3-341).

Based on factors such as the foregoing this court previously has determined that "the members of an electric membership corporation are in the same position as the stockholders of a corporation or the policyholders of a mutual insurance company as...