Opinion
56641.
SUBMITTED OCTOBER 10, 1978.
DECIDED JANUARY 18, 1979. REHEARING DENIED FEBRUARY 15, 1979.
Theft by taking. Fulton Superior Court. Before Judge Hicks.
Horton J. Greene, for appellant.
Lewis R. Slaton, District Attorney, Joseph J. Drolet, R. David Petersen, R. Andrew Weathers, Assistant District Attorneys, for appellee.
Appellant, pastor of the First Community Baptist Church, was accused of misappropriating county funds advanced to the church pursuant to the Comprehensive Employment Training Act of 1973 (CETA) (a locally administered federal program). This appeal follows a jury verdict finding appellant guilty of theft by taking as charged.
1. Appellant concedes that the evidence may support a conviction for theft by deception. As theft by taking encompasses theft by deception, we find appellant's argument that the evidence does not support a conviction for theft by taking unpersuasive. See, e.g., Jones v. State, 137 Ga. App. 612 (4) ( 224 S.E.2d 473).
2. The contract between the First Community Baptist Church and Fulton County provided for specific procedures in the event of misappropriation. Appellant submits that his behavior constituted a civil wrong at most and does not warrant criminal prosecution. We disagree.
That appellant's behavior may have also been subject to private contract remedies will not prevent the state from prosecuting criminal offenders. Gerdine v. State, 136 Ga. App. 561 (2) ( 222 S.E.2d 128).
3. We reject appellant's contention that the conviction cannot stand because there is no evidence that the accused directly benefited from the misappropriation.
Evidence that the accused did not personally receive any benefit from the taking may, without any further showing by the state, refute an essential element of theft by taking or deception. See, e.g., Stewart v. State, 142 Ga. App. 493 ( 236 S.E.2d 278), where the evidence would not support the verdict against an individual who turned over money to a corporation which misappropriated funds. See also First Nat. Bank c. Co. v. State, 141 Ga. App. 471 ( 233 S.E.2d 861). Here, however, there is evidence that the accused had engaged in criminal activity. The evidence authorized a finding that the CETA funds were given to the church with express reservations as to use; that appellant falsely swore that the funds were spent in accordance with the reservations; that the accused was the sole person authorized to sign checks on the account containing CETA funds; and that with knowledge of the CETA restrictions, the accused authorized the expenditure of CETA funds for non-CETA purposes. Therefore, notwithstanding whether appellant personally benefited from his acts, the evidence authorized the verdict. See Code Ann. § 26-1803.
4. During the course of direct examination, after the accused had put his character in issue, defense counsel attempted to qualify a lawyer as a character witness. When the witness responded that he was not sure he could testify as to the accused's general reputation in the community because of "the way" the witness knew the accused, defense counsel refrained from examining that witness further as to the accused's character. On cross examination, over defense counsel's objection that this witness had stated that he did not know the accused's general reputation and that such testimony might also violate the attorney-client privilege, the prosecution was permitted to question the witness as to general reputation. Appellant assigns error to the court's ruling.
Contrary to appellant's contentions, the witness did not deny knowledge of general reputation. Compare Sanford v. State, 203 Ga. 451 (A) ( 47 S.E.2d 268). The witness merely expressed a reluctance to testify due to his personal relationship with the accused. The record shows that the witness had knowledge of the accused's general reputation. Accordingly, the trial court properly rejected the appellant's objection to testimonial competency and allowed the character testimony. Hess v. State, 132 Ga. App. 26 (5) ( 207 S.E.2d 580). See generally Freeman v. State, 132 Ga. App. 742 (2) ( 209 S.E.2d 127). As to the claim of attorney-client privilege, see Buffington v. McClelland, 130 Ga. App. 460 (3) ( 203 S.E.2d 575). As to the rules of evidence applicable to character evidence, see Lynn v. State, 140 Ga. 387 (10) ( 79 S.E. 29); Giles v. State, 71 Ga. App. 736 ( 32 S.E.2d 111); Carroll v. State, 77 Ga. App. 251 ( 48 S.E.2d 491).
5. At trial, a witness was permitted to testify, over objection, that the accused had been in the company of unmarried women. We do not agree that the admission of this testimony requires reversal.
Prior to this testimony, the accused had placed his character in issue. Similar testimony had been elicited on direct examination of the accused. We do not consider the testimony so prejudicial as to require reversal. See, e.g., Carter v. State, 136 Ga. App. 197 (1) ( 220 S.E.2d 749); Martin v. State, 143 Ga. App. 848 (1) ( 240 S.E.2d 219).
6. The court did not err in failing, sua sponte, to instruct the jury to disregard certain testimony.
7. Appellant complains that the court erred in admitting into evidence, over objection, a certain chart which pictorially compared by means of bar graphs and pie charts CETA and non-CETA funding received by the church and the actual expenditures of such funds.
Appellant has failed to cite the portion of the record where the objection requisite to preserving appellate review was made. Under the rules of this court, we are unable to consider the asserted error. Code Ann. § 24-3618 (c) (3) (ii); Post-Tensioned Const., Inc. v. VSL Corp., 143 Ga. App. 148 (9) ( 237 S.E.2d 618); Ricks v. State, 140 Ga. App. 298 (2) ( 231 S.E.2d 113).
Judgment affirmed. Bell, C. J., and Birdsong, J., concur.