ARGUED MARCH 7, 1967.
DECIDED MAY 25, 1967. REHEARING DENIED JUNE 12, 1967.
Larceny after trust. Fulton Superior Court. Before Judge O'Connor from Oconee Circuit.
Sidney T. Schell, Harry S. McCowen, for appellant.
Lewis R. Slaton, Solicitor General, George K. McPherson, J. Walter LeCraw, John W. Stokes, for appellee.
Representations or transactions may be received in evidence as tending to show motive or intent when the transactions are so connected in time and so similar in their other relations that the same motive may reasonably be imputed to all.
ARGUED MARCH 7, 1967 — DECIDED MAY 25, 1967 — REHEARING DENIED JUNE 12, 1967 — CERT. APPLIED FOR.
Myer Sloan was convicted in Fulton Superior Court on three counts of larceny after trust. Count 1 of the indictment alleges the conversion on November 21, 1962, of $4,226.92 entrusted to him between July 17, 1962, and November 22 [sic], 1962, by Sam Fried for the purpose of making loans to others secured by real estate deeds. Count 2 alleges the conversion on August 24, 1962, of $5,000 entrusted to him by Sam Fried for the purpose of purchasing for Sam Fried $100,000 worth of first mortgage securities. Count 3 alleges the conversion on October 18, 1962, of $2,250 out of a total of $4,300 entrusted to him by Sam Fried for the purpose of clearing a lien of $2,250 on real estate and furnishing Sam Fried with a loan deed on the property not subject to such encumbrance.
During the presentation of the case the State offered in evidence a certified copy of an indictment and sentence from Cobb Superior Court showing the conviction of the defendant Myer Sloan on an indictment for a felony under Code § 26-2812, alleging the conversion of $1,000 on July 17, 1958, which he had received to pay to another for plumbing materials and labor, as evidence of "a similar transaction, to show motive, scheme, design, and intent." Over timely objection, the evidence was admitted and the accused limits his appeal to the contention that the trial judge erred in admitting this evidence.
The general grounds enumerated as error were abandoned.
Although error is not enumerated on the admission of evidence pertaining to the following transactions, the ensuing evidence is present in the transcript.
Ruggles, a witness, testified in substance as follows; he was in the business of making loans on real estate; in May of 1962 the defendant approached him about making a loan to Ralph Serra on property located at 4195 Blanton Ave. The loan was to be for home improvement and the work was to be performed by HJM Enterprises, which was the defendant Sloan's corporation. The defendant told Ruggles that Serra as owner would give him a first mortgage to secure the loan. This was not true as another person held the first mortgage on the property which had been executed by the defendant, and which was later foreclosed. Based largely on the defendant's representations, Ruggles made a loan to Serra for the proposed home improvements to be made. Before releasing the money, Ruggles required and received a completion certificate dated May 18, 1965, which was signed and sworn to by the defendant Sloan and by Serra as owner. The completion statement recited that the work required of the contract "entered into on May 1, 1962" had been performed. Later, on visiting the property, Ruggles found that no work had been done. The State, in connection with the Ruggles transaction, introduced in evidence certified copies of two warranty deeds. The first warranty deed, dated May 16, 1962, transferred the Blanton Avenue property from HJM Enterprises (signed by the defendant Sloan) to Ralph Serra. The second deed, dated May 17, 1962, transferred the same property from Ralph Serra back to HJM Enterprises.
Wilson, a naturopathic physician, testified that the defendant was present in an attorney's office at the time Wilson was seeking the attorney's aid in securing a loan. The defendant said he could get Wilson a second mortgage loan the amount of which was to be approximately $2,100. The defendant gave Wilson two papers to sign — one was "a short piece, and another a long sheet" and asked Wilson to sign them in blank saying he would fill them in later. Wilson signed the papers in blank. The long sheet, later identified and admitted in evidence, was a deed to secure debt in favor of defendant's wife and was for the amount of $7,200. The deed had been transferred and recorded by the transferee. From that transaction. Wilson received "approximately $2,100 or $2,200." The attorney, testifying as to his best recollection said the amount of the loan discussed in his office was $2,100, that $7,500 was never mentioned, the papers were signed in blank, that he had witnessed the papers but didn't know how they were filled in.
Fried, the alleged victim in the three counts of the indictment, testified in effect that there were transactions other than those alleged in the indictment which the defendant induced Fried to enter. One involved property on Ormond Street belonging to one Saylors. Fried delivered $6,400 to the defendant for a mortgage on the Saylors property, the money to be used for home improvement. The loan deed signed by Saylors was in the amount of $12,000. Fried testified he never got back his $6,400 and that he had to turn that deed over to defendant "in order to free my property of that fraudulent mortgage" of $50,000. This $50,000 mortgage, not mentioned in the indictment, was explained by Fried who testified he had signed a deed "in blank" and delivered it to the defendant "in order to get a loan on my Druid Hills property that Myer Sloan said he could get for me." He later asked Sloan for the deed but the defendant "said that he had lost it." Months later, when Fried was trying to borrow against that property, a title search revealed that the loan deed was recorded, filled out in the name of the defendant's wife as trustee, was in the amount of $50,000 and had been transferred to the defendant's mother.
The loan deeds in the above enumerated transaction were introduced and admitted in evidence along with numerous other items of documentary evidence.
As the majority view the evidence objected to in this case, there was no error in its admission. The single enumeration protests only one of a series of transactions of a similar nature appearing in the transcript. Evidence of the defendant's previous indictment and conviction, the admission of which is challenged here, when coupled with the other similar transactions as each appears in the preceding factual summation, has some logical connection with the counts of the indictment under which the defendant was tried. Each of the counts of the indictment involved a species of larceny after trust. Each of the transactions admitted in evidence including the one questioned, were of the same inherent nature, reasonably connected in time, and thus were admissible as bearing upon the defendant's intent. "While it is a general rule that upon the trial of a person for a criminal offense, other and distinct criminal transactions cannot be given in evidence against him, yet, according to the weight of authority, evidence of other representations or transactions may be received, as tending to show motive or intent, when the transactions are so connected in time and so similar in their other relations that the same motive may reasonably be imputed to all." Farmer v. State, 100 Ga. 41, 43 (2) ( 28 S.E. 26); Shelly v. State, 107 Ga. App. 736 (3) ( 131 S.E.2d 135). "Intent being one of the essential elements of the crime charged in an indictment for larceny after trust, evidence relating to other similar transactions is admissible, under the exceptions to the general rule, where it tends to prove intent." Farlow v. State, 59 Ga. App. 881, 882 ( 2 S.E.2d 500); Maynard v. State, 47 Ga. App. 221 (1) ( 170 S.E. 265); Claughton v. State, 50 Ga. App. 398 (1) ( 178 S.E. 327); Conley v. State, 50 Ga. App. 404 (1) ( 178 S.E. 313).
In light of the holding here, we deem it advisable to comment upon the recent case of Davis v. State, 115 Ga. App. 338 ( 154 S.E.2d 462). Davis is manifestly correct in its judgment of reversal since the transcript there contained only one other incident which under the facts of that case was improperly admitted. Under those circumstances the case of Bacon v. State, 209 Ga. 261 ( 71 S.E.2d 615) was applicable. However, Davis contains obiter which misconstrues Bacon and practically attributes to the latter the effect of eliminating the exception to the general rule and of overruling all precedents which have applied the exception. As the majority comprehends Bacon, the Supreme Court expressly recognized the exception to the general rule but on the facts of that case held simply that the general rule, not the exception, governed. There the Supreme Court cautioned against elimination of the general rule by a too liberal application of the exception. In this case the dissent (as is true of the obiter in Davis) would do the converse by eliminating the exception by a too strict application of the general rule. Judgment affirmed. Felton, C. J., Hall, Eberhardt, Quillian and Joslin, JJ., concur. Jordan, P. J., Pannell and Deen, JJ., dissent.
In the recent case of Davis v. State, 115 Ga. App. 338, supra, we followed the manifest intent of the Supreme Court in Bacon v. State, 209 Ga. 261, supra. We should have followed it in this case.
The majority opinion states that Davis "contains obiter which misconstrues Bacon." This criticism is hardly justified in light of the fact that we quoted the exact words of the headnote in Bacon and a quote from the body of the opinion, concluding that earlier decisions which tended to liberalize the exception to the general rule are of doubtful value as precedents. This conclusion seems fully justified in view of the fact that Bacon, supra, reversed the opinion of the Court of Appeals in Bacon v. State, 85 Ga. App. 630 ( 70 S.E.2d 54), which cited a number of previous cases upon which that result was based. It was pointed out that the opinion of the Court of Appeals not only conflicted with decisions of the Supreme Court, but also conflicted with many prior decisions of the Court of Appeals.
Mr. Chief Justice Russell pointed out in Green v. State, 172 Ga. 635 ( 158 S.E. 285), that "the rule that the character of a defendant in a criminal case cannot be put in issue or attacked has been gradually chiseled away and finally located in the shadow of other principles. . ." Justice Hawkins, speaking for the court in Bacon, served notice that the appellate courts are without power to repeal or destroy this basic rule by a too liberal application of the recognized exceptions.
That the evidence of the previous conviction in the present case shows a similar criminal transaction involving substantially the same intent as larceny after trust for which the accused was being tried does not per se render the evidence admissible. The Bacon case, supra, stands for the proposition that evidence of a wholly independent, separate, and distinct offense is inadmissible for the purpose of showing intent, absent any logical connection between the offense and the case on trial. In the present case the evidence discloses a separate although similar transaction in another county some four years previously. It has no logical connection with the offenses for which the accused was on trial. For these reasons we do not consider the evidence admissible to show motive, scheme, or design.
As one writer recognized in 3 Mercer Law Review 52, "it is the intent and purpose of our law to try a man under the bill of indictment which brings him to trial — not for some malefaction which may have occurred many years ago."
I am authorized to state that Judges Pannell and Deen concur in this dissent.