*1 ¶ 14.12; Holtzoff, 1A eral Barron & Practice Fed. Practice & Proce- Civil, Penney dure: J. C. Co., 426.2. See also Co. v. § Malouf 145) (1973) (on motion for rehearing). — In applying foregoing analysis to the facts this spe- case cifically, appellee’s denial coverage coupled of with its refusal to de- — appellant fend persuaded this action we are that the trial court erred in dismissing appellant’s third-party indemnity against claim appellee. We are holding by buttressed this policy of the Civil Act, Practice it ‘shall be construed to just, speedy secure the inexpensive every determination of action.’ [OCGA § 9-11-1.] expounding policy, this our courts have held that the impleader pro- liberally visions are to be construed to multiplicity actions, avoid to save time and cost of reduplication of evidence and to assure con- sistent results from similar evidence and common issues. Mc- [Cits.]” Michael Co., v. Ga. Power App. 593, 632) 594-5 (1974). To the extent language contained in opinion this court’s in Thigpen Koch, App. 182, 117) (1972), require would a result here, different from that reached it is obiter dicta and will not be express followed. We opinion no as appellee’s alternative motion separate trial third-party on the claim as this issue has not been addressed the trial court. Judgment part; part. Banke, J., reversed in P. affirmed
Benham, J., concur. September 14, 1984 Decided
Rehearing denied October Ansell III, T. Maund for appellant. Greene,
C. Scott Bauer, Edward J. appellee.
68387. BRADDY THE STATE.
Birdsong, Judge. Malcolm Braddy Leo was charged along with his mother with theft receiving stolen property. Mrs. Braddy acquitted was one charge she faced. Braddy acquitted of twelve counts but con- victed of two others. He was sentenced to consecutive five-year pro- sentences, bated period service, public fines and court costs. Braddy brings appeal this enumerating alleged three errors.
The facts giving rise to these convictions reflect youthful that two burglars committed a series of house burglaries and sold the stolen goods to Braddy and his mother who owned a “men’s” store. Braddy offered evidence that he collecting had been “junk” all his life and else- utility scattered his store varying values and had items of one of certain silverware from bought where. He conceded that he assured the seller maintained that he was burglars but Braddy maintained grandmother. silverware came from the seller’s price whereas the seller-thief reasonable bought that he the silver at a *2 informed that the silver be- Braddy “snickered” when testified that price the silver at a purchased and grandmother to the seller’s longed evidence that he had Braddy real value. also offered grossly below its before, purchase that wrongdoing with never been had title believing in faith that the seller goods stolen was Additionally, Braddy testified that he right to sell it. thereto and the class, church, Sunday in a School and was taught was active his local in his church. Held: youth an associate minister of error, Braddy complains 1. In his first two enumerations a conviction or assess a there is no valid evidence of value to warrant felony jeweler its value witness a sentence. The State called as for in excess of 30 appraising precious jewelry had been metals without years qualified expert appraiser, objection. and who was as an silver, sepa- a value on the two appraiser placed In relation to the flatware, in excess of quantities grouping being rate each valued $2,000. opinion and pressed reaching When as to the manner of value, Gorham’s appraiser estimate of testified that he had taken reduced price pattern quantity list for silver of the involved and Braddy nothing that this amounts to figure argues now 25%. by someone other than price more than a statement of cost furnished giving opinion. the witness persuaded by The argument.
We are not such an witness qualified expert opinion as an without as to objection gave alleged Generally each item the fourteen counts of the indictment. testimony expert nothing give more is to entitle one to as an particular profession. than that he has been educated in the trade or Special may knowledge regard particular subject to a be derived Fra experience study application. from as well as and direct mental (227 284). State, App. zier v. 138 Ga. 645 SE2d When a witness is the facts on qualified expert, necessary as an it is not that he state based, opinion may which his so. That is all that occurred but he do objection expert gave this case. There was no voiced at the time the opinion predicate opinion clearly and a for the was laid. There was allowing assessing no error the evidence of value nor sentence as felony. Hollywood Baptist Hwy. Dept., Church v. State See (150 271). State, App. Ragsdale App. 170 Ga. SE2d See also (317 288). SE2d error, Braddy error in the de- urges his last enumeration of on character. The State requests charges nial of his written for Braddy’s argues charges it was not error to refuse these because opinion upon reputa- not amount to evidence of based did community. tion State, support argument
The State cites in of its (266 Simpkins 252); 149 Ga. 63); Cherry 180); Overby v. (3) (188 910). The McCollom case, (on supra, evidence; i.e., significant does hold much less the de- fendant therein stated that he had never been in trouble nor any had detective) trouble with a named character was not raised so as to lend error to a failure to charge on character. McCollom precedent The case cites as holding its the cases of Cherry and Wilson supra, 829-830 861). It should be noted however that there was no written re- quest the McCollom case. For charge character evidence alone, that reason it was not give error to fail to a character evidence charge. Spear v. 397). The case, supra, however, question does hold that a as to whether Cherry had been convicted of a crime of moral turpitude was not sufficient to Wilson v. place evidence, character in citing authority as for the holding. Cherry states that character is *3 required when direct examination relates to general reputation, good Wilson, supra, That indeed is what holds with one major Wilson qualification. applied rule testimony to the of a third party to attempting good establish the character of the defen- (testimony dant of Wilson’s mother that he had never in been trouble Wilson, prior to the alleged). supra, p. crime An pertinent examination of cases establishes a in difference ad- missibility requirements and threshhold where the defendant at- tempts to show good character through party a third and where he by introduces it his testimony. own testimony As of a third party, the State, stated and discussed in Hudson v. clearly rule is 163 (4) (295 123). Ga. App. 845 That case holds that a defendant may place his character in evidence (through party) by a third testi- mony reputation as to his in the in community which he lives. This principle extensively in However, discussed that case. it is clear that a less stringent applies rule where it is the testimony of the de- fendant himself that State, the issue. Thus in Brown v. introduces 467, 853), Brown denied committing a rob- bery, that he had ever anyone, robbed and that he had ever broken the law. At point no did Brown offer evidence general repu- as to his in Nevertheless, tation the community. Supreme Court held that upon based testimony of Brown on direct: “In appel- this case the lant on put direct examination his character in issue. He denied his in involvement the crime for which he was being tried and went fur- by ther adding that he had ‘never anybody’ robbed nor any- ‘stolen by the my mother.’ These additional averments from home or thing Connally v. his in . . .” Id. See also appellant placed character issue. by State, App. where his character placed arrested before accused that he had never been (1) (278 2) high- Murray v. App. in issue. place his dichotomy by out that the defendant can lights pointing this evi- statement as well as introduction by in character issue dence, In support in thereof. that case citing numerous cases crime, in the and con- testimony Murray own denied involvement dope. This was sufficient drugs tended he did not use and did not sell in put his character issue. Thus, supra, Ga. they are overruled insofar as hold that failed to personal testimony
a defendant’s that he had never abide law, reputation in the although amounting to evidence community, good character. It is insufficient to raise hardly gainsaid by Braddy can be that statements that he had never the stolen wrongdoing, purchased before been with that he in belief, active silver faith and innocent that he was the associate minis- taught Sunday church and School class and was Connally youth, character. put ter did indeed into issue his State, supra. fact, The good person character of an accused is a substantive weighed and evidence of such character should be and consid- by the jury ered connection with all the other evidence the case. 557). David v. (2) (238 When there is an appropriate request, proper given instruction should be in issue. Scott every case person puts where the accused his character 575). (3) effect, Ga. 337 To the same see SE Knighton (1) 861). Except in rare cases, instruction, request there is no where no is made for such an Spear supra. error the failure to character. character, proper requests the face of for instructions case, under the evidence this we conclude the trial court erred *4 Moreover, denying requests. those we cannot conclude that this error of theft jury was harmless. The this case considered counts property. Braddy criminal involvement or receiving stolen denied The guilty knowledge purchase question. his of the silverware testimony of an jury credibility had to resolve issues of between the thief, may to shift blame or for testifying admitted who have been benefit, personal offered substantive evidence person other and a verdicts good law-abiding jury of character as a citizen. The returned on two. We cannot guilty guilty only of not on twelve counts and have been as speculate might know nor will we the verdict jury’s what they verdict was returned had upon guilty to the two counts which a may alone suf- standing character be been in effect trial on acquittal. requires ficient to warrant an This omission a new to Counts 11 and 12. guilt or innocence as Deen, J., J., Banke, J., P. Judgment Quillian, reversed. P. P. Benham, JJ., JJ., dissent. Mc- Sognier Carley Pope, concur. J., Murray, judgment C. concurs the the dissent. of September 27, Decided Rehearing denied October II, appellant. M. Theodore Solomon for Dixon, Jr., Harry Attorney, appellee. D. District Judge, dissenting. Carley,
I respectfully appellant’s must dissent to the reversal of convic- Cherry tion v. majority’s overruling and to the of 148 Ga. (252 180) (1979) 153 Ga. (266 252) (1980). The majority acknowledges where the de- fendant seeks to use prove his character of character wit- nesses, proof statutory must questions prov- take the form of the ing reputation I community. disagree majority with the the rule is different when the charge defendant seeks a on character solely as a substantive upon defense based which does prove reputation. not “A person likely is more to act in accord contrary with his character than it. may Thus a defendant [Cits.] present evidence of his character as a substantive fact indicative itself, may, by his innocence. It create a reasonable doubt as to his guilt. [Cit.]
“However, the rule in Georgia may is that character be proved only by testimony reputation per- of a witness as to the son whose character is in Subject exceptions, issue. to minor [Cit.] opinion of a witness as to personal character based on observation is approved way not an of introducing evidence of character. [Cits.]” 238) (1981). Waters One sought overruled, Cherry of the cases be has been approval by cited with portion and the relevant thereof has emphasized been Supreme ‘A Georgia: Court of character when direct examination relates to general reputation, good [Cits.]’ 180) (1979).” Aldridge 525) (1981). (Emphasis Supreme opinion.) Court
We are dealing here with a determination as to whether the placed defendant has purpose his character issue for the of decid- ing scope contrary proffered by Phillips evidence the state. See 393) (1984). What we are con- *5 character as right is the of a defendant to utilize cerned with substantive defense in the criminal “A defendant a criminal trial. rely general case who relies for a defense on his character must on character, Davis v. particular and not on a trait alone.” 89) (1939). Evidence with to a defen- regard dant’s church it is membership has been held excludable because “general reputation.” not confined to his Whiddon v. See 95) (1924). ‘A charge SE character is required when direct general reputation, good examination relates to Contrary appellant’s appeal, to assertions on the [Cit.]’ [Cit.] evidence which in- put he contends character into issue was ‘general sufficient to meet this standard. The reputation’ most appellant’s can be said for ‘good evidence of his character’ was that it merely him average, person.’ identified and to be ‘an nice described 441) (1981). Conner v. [Cit.]” Unlike the I majority, can find no rational basis for holding character, order for a trial court to be un- the derlying evidence must conform to the long established criteria when given by character allowing witnesses while the defendant himself to effect, say, in he average person.” Accordingly, is “an nice I be- correctly lieve that and McCollom I state the law and would and, overrule those cases. I appellant’s would affirm conviction therefore, I respectfully dissent.
I am authorized to Judge Pope joins state this dissent.
68493. DUNHAM v. WADE et al. Judge.
Carley, Appellee-defendant Mr. Wade owned a 1978 Chevrolet Monte wife, Carlo. With Mr. permission, appellee-defendant Wade’s Mrs. Wade, the operating May automobile on 1979. Mrs. Wade drove the automobile to the baby-sitter pick up home of a the baby-sitter’s Wades’ child. The home was located a residential area and Mrs. parked Wade on the street in front of the house. She left keys ignition. quite ready, Because child was not Mrs. was required baby-sitter’s Wade to wait inside the house several time, minutes. During period that short the automobile was stolen by Garrett Douglas, stranger was a total to the Wades. vehicle, stealing
After Douglas appel- drove it to the home of lant-plaintiff Mrs. Mrs. joined Douglas Dunham. Dunham’s son drive. Douglas wrecked the car and Mrs. Dunham’s son died as the result. Mrs. Dunham the instant action the Wades and against filed Wades, Douglas. against complaint alleged As Mrs. Dunham’s