Thomas v. State , 91 Ga. App. 804 ( 1955 )

Nichols, J.

1. In a disbarment proceeding, which necessarily involves the honesty, probity, and good moral character of the accused, he maj’ present evidence of his good character, not to justify or excuse an offense with which he is charged, but to support his denial of the charge and in mitigation of the gravity and consequences of the offense. Lenihan v. Commonwealth, 165 Ky. 93, 105 (176 S. W. 948, L. R. A. 1917B, 1132); 5 Am. Jur. 438, § 294. See generally, as to the right to submit character evidence in cases involving the character of the defendant, Code § 38-202; McNab v. Lockhart, 18 Ga. 495 (11); German American Mutual Life Assn. v. Farley, 102 Ga. 720, 744 (29 S. E. 615); Mays v. Mays, 153 Ga. 835 (113 S. E. 154); Wimberly v. Toney, 175 Ga. 416, 423 (165 S. E. 257); Caldwell v. Caldwell, 59 Ga. App. 637 (1) (1 S. E. 2d 764).

2. In the present case—where disbarment proceedings were brought against the defendant attorney, charging that, while acting as the administrator of a named estate, he “committed acts of deceit and wilful misconduct which render him unfit to enjoy the privileges of attorney at law,” for that he did, while acting as such administrator, “fraudulently and wilfulfy convert to his own use” a named sum of money which had come into his hands as administrator, and where he admitted on the trial employing funds of the estate for his own personal use, but denied that he used the money with an intention of defrauding the estate, and stated that he did not defraud anyone, but believed that, because of fees and money due him, he was solvent and at all times intended to make a full and fair accounting, and it was shown that he had made a final accounting with the court of ordinary as to the estate and had received letters of dismission—the trial court erred in refusing to allow a number of witnesses to testify to his good character, including the period in which he is alleged to have misused the funds of the estate,

Quillian, J., concurs. Felton, C. J., concurs specially. Decided April 6, 1955. Wm. G. McRae, Bruce B. Edwards, for plaintiff in error. Paul Webb, Solicitor-General, contra.

(a) Wood v. State, 45 Ga. App. 783 (1) (165 S. E. 908), is not contrary to what is here ruled, it being there held only that mere good conduct and reformation, subsequent to the alleged misconduct of an attorney, would constitute no defense to the original misconduct.

3. The prosecution having elicited from a representative of the defendant’s bondsman, while on the stand, testimony that a security deed executed by the defendant, subsequently to the alleged misuse of funds by the defendant, in consideration of the bondsman paying to the estate certain money for him, had been foreclosed, and that a subsequent written agreement between the same parties was entered into, permitting the defendant to redeem the property by making stipulated payments, the trial court erred in refusing to admit in evidence the written contract as evidencing the subsequent agreement. C. & S. Bank of Thomaston v. Barron, 181 Ga. 351 (2) (181 S. E. 859); Ga. Savings Bank &c. Co. v. Marshall, 207 Ga. 314 (1) (61 S. E. 2d 469).

4. Inasmuch as the case is being reversed for the reasons above stated, it is unnecessary to pass upon the grounds of the motion for new trial complaining of the direction of a verdict against the defendant, and refusing to direct a verdict in his favor.

Judgment reversed.