Thomas v. State

Felton, C. J.,

concurring specially. I concur in the rulings by the majority and in the judgment. I wish to expand on the reasons for my concurrence. The solicitor-general chose the ground on which he seeks the disbarment, and he must prevail if at all upon that ground. The ground is the appropriation of estate funds with the intent to defraud. Since the case is based on the one ground, whether the attorney should be disbarred on another ground of less moment is not before us. The ground here does not involve a crime. Code § 26-2805. It was therefore incumbent upon the solicitor-general to prove actual fraudulent intent since, as no crime is alleged, there is no presumption of fraudulent intent from the proof of unauthorized appropriation of another’s property, as in such cases as Mangham v. State, 11 Ga. App. 427 (1) (75 S. E. 512) and Denmark v. State, 44 Ga. App. 157, 164 (161 S. E. 286). I call attention to this especially because of the ruling on character evidence. In this case it is admissible because actual fraudulent intent must be proved. In such cases as those above cited, character evidence would not be admissible simply to refute fraudulent intent if there was no dispute about the act of unauthorized appropriation. In other words, character evidence cannot defeat a conclusive legal presumption.