Pender v. Witcher

Benham, Judge,

concurring specially.

I concur fully with the majority and write only with respect to Division 2 of the opinion. As the majority points out, the judgment in this case can only be affirmed if the decision in Hightower v. Gen. Motors, 175 Ga. App. 112 (1) (332 SE2d 336) (1985) is overruled. I dissented in Hightower because I believed then, as I do now, that it *75extended the Supreme Court’s decision in Favors v. State, 234 Ga. 80 (3) (214 SE2d 645) (1975), which allowed the defendant in a criminal case to impeach the State’s witness with evidence of a first offender conviction, far beyond what that case intended. The case at bar presents an opportunity for the Supreme Court to decide the issue which they found unnecessary to review in Hightower v. Gen. Motors Corp., 255 Ga. 349 (338 SE2d 426) (1986): whether evidence of a first offender conviction may be used to impeach a witness in a civil case as evidence of a conviction of a felony or crime involving moral turpitude.

I am authorized to state that Judge Pope joins in this opinion.