Pender v. Witcher

Beasley, Judge,

concurring specially.

I concur fully and only add, with regard to Division 2, what may explain why the logical rationale in Whidby v. Columbine Carrier, 182 Ga. App. 638 (356 SE2d 709) (1987), is in error.

Defendant, as a witness, was subject to impeachment just as any other witness other than an accused in a criminal case. Harris v. State, 173 Ga. App. 787, 788 (2) (328 SE2d 370) (1985). One of the common law methods of impeachment is conviction of a crime of moral turpitude or a felony, the roots of which rule are synopsized in Lewis v. State, 243 Ga. 443 (254 SE2d 830) (1979). The evidentiary rule is a relaxation of the former common law tradition of barring certain convicts from testifying altogether. The reason for this former rule of witness incompetency was the view that “insensibility to the obligation of an oath . . . [followed] conviction of an offense which rendered one infamous.” Shaw v. State, 102 Ga. 660, 670 (29 SE 477) (1897). It was infamy which precluded such a witness from testifying altogether, as the law conclusively presumed the witness not to be credible. Now such a witness is permitted to testify, but the effect of the witness’ crime-producing infamy on the issue of his or her credibility is deemed relevant and is left to the jury to accept or reject.

Not all convictions would be admissible for this purpose, as demonstrated by the analysis in Lewis, supra, and the distinction is not drawn upon whether the crime is malum in se or malum prohibitum. The Supreme Court applied two tests without expressly holding that satisfaction of only one would be sufficient, although that is indicated. It held that the sale of cocaine (OCGA § 16-13-30 (b)) meets both tests.

In this case, the crime is possession of cocaine. It, too, meets both tests. First, it draws felony punishment. OCGA § 16-13-30 (a) and (c). Second, it is “contrary to justice, honesty, modesty, good morals or man’s duty to man.” Lewis, supra at 446. Since possession of cocaine necessarily means that the possessor obtained the drug or received it from someone, and that he or she did so prompted by the desire to *76have it for some reason (such as to use or sell or give to another), it follows that the possessor is an integral and obviously essential link in the chain of drug trafficking, a scourge of mankind. The possessor, a contributor to such activity, violates “man’s natural duty to man.” Lewis, supra at 447. It is thus “a crime falsi,” the concise term used in Georgia R. v. Homer, 73 Ga. 251, 258 (5) (1884), which according to Black’s Law Dictionary, 4th ed., “involves the element of falsehood, and includes everything which has a tendency to injuriously affect the administration of justice by the introduction of falsehood and fraud.”

Decided December 5, 1989 Rehearing denied December 20, 1989 Davis, Sissel & Williams, Warren P. Davis, for appellant. Chambers, Mabry, McClelland & Brooks, Genevieve L. Frazier, for appellee.

The evidence was relevant and, considering its case-recognized potential effect in the credibility equation, exclusion from the jury’s ken was harmful error.