Thomas v. State, 36591
| Decision Date | 14 May 1957 |
| Docket Number | No. 36591,No. 1,36591,1 |
| Citation | 99 S.E.2d 242,95 Ga.App. 699 |
| Parties | W. George THOMAS v. STATE of Georgia |
| Court | Georgia Court of Appeals |
Syllabus by the Court
1. Where a timely, legal request to charge is better adjusted to the facts of the case and more clearly informs the jury as to issues to be passed upon that does the instructions given, the judge should charge as requested.
2. A charge in the language of the Supreme Court adapted to the issues of the case, and appropriate instructions to the jury, generally should, when requested, be given in charge to the jury.
3. The same principles as that pronounced in the preceding headnote is applicable to the charges in the language used by the Court of Appeals.
4. Requested charges not pertinent to the issues of the case are properly refused.
5. Charges to the jury should not be argumentative.
6. It is not error that other pertinent principles are not included in a fair and complete charge in reference to a specific principle of law.
7. 'Testimony totally irrelevant or immaterial, but which is calculated to arouse prejudice or passion against the accused, should not be admitted in evidence.' Wilson v. State, 9 Ga.App. 274(3), 70 S.E. 1128.
8. A motion for new trial must point out the specific particular in which a charge complained of is incorrect.
9. Facts that either tend to establish, explain, or illustrate matters pertaining to the issues of the case constitute relevant evidence and it is not essential to their admissibility that they serve more than one of these functions.
10. The admission of hearsay evidence is frequently, if not usually, harmless but where as in this case it tended to prejudice the jury it was prejudicial.
11. A party cannot complain that evidence is admitted when he offers other evidence of similar legal import.
12. Self-serving declarations and testimonial conclusions of a party that his cause is just and his defense good are properly excluded.
13. A witness cannot ordinarily refuse to answer a question propounded to him simply because it is inadmissible, that is, a question that does not involve any right of personal immunity that the witness can claim under Code, §§ 38-1701 and 38-1102.
14. The law is plain: a witness may testify as to his own intent or purpose, but not that of another; nor can he state the purpose of an unambiguous contract which clearly reveals is purpose.
15. Evidence that is irrelevant to the issues of the case, prejudicial to the cause or defense of a party against whom it is affirmed, should be excluded on his objection.
16. An objection which fails to point out wherein the opinion expressed by the witness was a conclusion, or that the foundation for his conclusion as to the value of the property has not been properly laid is incomplete and ineffective.
The Solicitor-General of the Atlanta Judicial Circuit filed a petition in the Superior Court of Fulton County praying the disbarment of W. George Thomas, an attorney at law. The petition alleged: that W. George Thomas was a resident of the State of Georgia and Fulton County; that he was a practicing attorney at law of the Atlanta Bar, maintaining an office and practicing law in Fulton County; that W. George Thomas has committed acts of deceit and wilful misconduct which render him unfit to enjoy the privileges of attorney at law; that W. George Thomas at divers times during the years 1950 and 1951, in Fulton County, he being then and there the duly appointed, qualified and acting administrator of the estate of Lewis Edgar Austin, deceased, did fraudulently and wilfully convert to his own use $18,000 in money, of the value of $18,000, which sum had come into his hands as such administrator; said acts of misconduct bring reproach upon the profession of attorney at law, and render W. George Thomas a nuisance to the courts, his fellow members of the Bar and to the public; that the disbarment of W. George Thomas is necessary for the purpose of protecting the courts from the official ministration of a person unfit to practice as an attorney at law therein.
The defendant on April 7, 1953, filed his answer in which he admitted the jurisdictional facts, and the averments of the petition that he was the administrator of the estate of Lewis Edgar Austin, and did appropriate to his own use the funds of the estate, but denied that he did so with fraudulent intent. The defendant further pleaded: that a judgment was entered by the Court of Ordinary of Fulton County, Georgia, at the September term, 1951, of the court, wherein the court found from an examination of the proceedings in the court in the matter of the estate of Lewis Edgar Austin, deceased, upon application therein of defendant for letters of dismission as administrator of the estate, that defendant as such administrator had fully and faithfully administered the property of the estate, and the judgment directed the issuance to the defendant of letters of dismission, and letters dismissory were issued to defendant as such administrator, and he was thereby fully discharged and dismissed from all liability on account of his administration of the estate, which judgment is of full force and affect. A certified copy of the letters dismissory was attached marked Exhibit 'A' and made a part of the answer by reference thereto as fully as though set out herein in haec verba.
The case has been before this court on two previous occasions. Thomas v. State of Georgia, 87 Ga.App. 765, 75 S.E.2d 193; Thomas v. State, 91 Ga.App. 804, 87 S.E.2d 239.
On the trial that we now review the plaintiff proved that Thomas converted a large sum of the estate's money to his own use; also adduced evidence tending to show that he did not have assets equal to the sum he appropriated. The defendant introduced proof tending to show that he bona fide believed his assets were ample to meet the deficiency he created by appropriating the funds of the estate and that he did not intend to defalcate the estate's money. He also introduced proof of his discharge as administrator of the estate of Lewis Edgar Austin, deceased. The undisputed evidence showed that the final settlement with the heirs of the estate was made with a check from the bonding company, who was surety on the defendant's administrator's bond. The case proceeded to trial and resulted in a verdict for the plaintiff, or movant and a judgment disbarring the defendant, W. George Thomas.
The defendant filed a motion for a new trial on the general grounds and amended to add grounds. The motion for new trial was denied, the defendant excepted, and the case is here for review.
Wilbur B. Nall, Milledgeville, W. George Thomas, Atlanta, and J. M. Watts, Jr., Milledgeville, for plaintiff in error.
Paul Webb, Sol. Gen., and Eugene L. Tiller, Atlanta, for defendant in error.
1. Ground one of the amended motion for new trial complains that the presiding judge refused the timely written request of the defendant to charge the jury:
'Gentlemen, I charge you that Mr. Thomas is not charged with committing a crime, he is charged with deceit and wilful misconduct in converting funds that came into his hands as administrator of the estate of Lewis Edgar Austin.
'I charge you, gentlemen, that the burden of proof is upon the State to prove these allegations by a preponderance of the testimony, I further charge you that the State must prove actual fraudulent intent, as there is no presumption of fraudulent intent from the proof of unauthorized appropriation of another's property.'
The requested instructions were in the language of Judge Felton's special concurrence, Thomas v. State, 91 Ga.App. 804, 87 S.E.2d 239, and embodied a legal charge pertinent to the issues of the case. This is apparent when it is reflected that the principal issue in the case was whether the defendant fraudulently converted the funds of an estate he represented as administrator to his own use.
The plaintiff does not insist that the requested charge did not contain a sound legal statement of the law or that it was not adjusted to the issues of the case. He insists that there was no error in refusing the request because the judge did instruct the jury substantially as requested. The court's charge was:
'Gentlemen, I charge you that if you determine from the evidence and under the rules which the court gives you in charge that the defendant, W. George Thomas, appropriated to his own use funds of the estate of Lewis Edgar Austin, deceased, with the intent to defraud, then the fact that the defendant, W. George Thomas, subsequently restored such funds to the estate and received letters dismissory from the court of ordinary would not excuse him.
'I charge you that in this case the burden of proof is upon the solicitor-general to prove by a preponderance of the evidence, under the rules that I have given you in charge, actual fraudulent intent upon the part of the defendant.'
The charge given did not inform the jury that no presumption of fraudulent intent arises from the unauthorized appropriation of the funds of another, nor was it as aptly adjusted to the issues of the case as the requested charge. In Rowe v. Cole, 176 Ga. 592, 598, 168 S.E. 882, 885, in an opinion written by the learned and lamented Chief Justice Russell, the Supreme Court held: ...
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