Pope v. State , 179 Ga. App. 739 ( 1986 )

Deen, Presiding Judge,

concurring specially.

The appellant enters criminal proceedings with a presumption of innocence in his favor. The state not only has a duty to present evidence proving guilt beyond a reasonable doubt, but in this particular case seemingly should also have the burden of producing a copy of the employment agreement, which should indicate that appellant did not have the authority to sign checks for his clients.

John Bean Mfg. Co. v. Citizens Bank, 60 Ga. App. 615 (4 SE2d 924) (1939) and Brumbelow v. Northern Propane Gas Co., 251 Ga. 674 (308 SE2d 544) (1983) appear to give wide, almost blanket, authority to attorneys in handling their clients’ affairs, yet this should not include endorsing a client’s name on a check unless the authority for this is clear.

The dissent, without citation of authority, would affirm the conviction. It sanctions inclusion of civil canons of ethics in this criminal proceeding to show that the appellant was not entitled to the funds and that he had the intent to commit the criminal act. The dissent thus would broaden the burden of the appellant in his defense to the crime of forgery, which would not be the case if appellant were only a non-professional defendant.

The rule in Georgia is that criminal convictions, in the absence of a guilty plea, are inadmissible in a civil or tort action with regard to the same occurrence. Continental Cas. Co. v. Parker, 161 Ga. App. 614 (288 SE2d 776) (1982); Cobb v. Garner, 158 Ga. App. 110 (279 SE2d 280) (1981). The reverse would appear to be more compelling; that is, civil charges, canons, causes and consequences, in the absence of a confession or guilty plea should not be admissible or have any place in a criminal case. Even had appellant pled guilty or confessed to having breached the attorneys’ canon of ethics in a civil proceeding or hearing before the State Bar, for example, in this regard there would still remain the serious question of whether this information should be allowed for the sole purpose of indicating intent in a criminal prosecution for forgery. “[N]o person can be convicted of any offense not charged in the indictment.” Goldin v. State, 104 Ga. 549, 550 (30 SE 749) (1898).

We must reverse for the reasons set forth herein and outlined in the majority opinion.