Black v. State, 44199
| Decision Date | 25 June 1969 |
| Docket Number | No. 44199,No. 3,44199,3 |
| Citation | 168 S.E.2d 916,119 Ga.App. 855 |
| Parties | Tommy BLACK v. The STATE |
| Court | Georgia Court of Appeals |
James Horace Wood, Jefferson, for appellant.
G. Wesley Channell, Sol. Gen., Winder, for appellee.
Syllabus Opinion by the Court
1. This appeal is from a judgment of conviction and sentence for receiving stolen goods. The defendant demurred to the indictment. His demurrers were overruled and this action is enumerated as error.
The indictment reads in pertinent part as follows: '(T)ommy Black * * * did buy and receive from some person * * * one 1963 Chevrolet motor, type 327 and transmission unit complete of the value of $300, the same being the property of Barbara Bland, the same having been feloniously stolen by some party unknown, he, the said Tommy Black, knowing said goods were stolen when he so bought and received them from said thief.'
The grounds of the defendant's special demurrer are that the horsepower of the motor is not specified; that no motor number or serial number of the motor is set out; that no transmission number or serial number is set out; and that it is not specified whether the transmission is automatic or non-automatic. The demurrer contended that, because of these deficiencies, the defendant is unable to prepare his defense or to plead in bar a subsequent prosecution for the same offense.
In Carson v. State, 22 Ga.App. 551(2), 96 S.E. 500, a 'one five-passenger Ford automobile the value of four hundred ($400.00) dollars and the property of W. C. Jones,' was held to be a sufficient description. Likewise, a 'one 1949 Model Fleetline Chevrolet Coach of the value of $1300.00, the personal property of J. D. Murray' in Mitchell v. State, 89 Ga.App. 80, 78 S.E.2d 563, and a 'one Oldsmobile Starfire Coupe automobile of the value of $3,000.00' in Gee v. State, 110 Ga.App. 439, 138 S.E.2d 700, were held to be sufficient descriptions to withstand demurrer.
The indictment in the present case is equally definitive. The trial court did not err in refusing to quash the indictment on the grounds specified.
2. The second enumeration of error is that the trial court erred in overruling defendant's motion to suppress as evidence any and all evidence gained by the Sheriff of Banks County and other law enforcement agents from a search of defendant's premises in June, 1963, on the grounds that the search was made without warrant and without authority; that the search was not incident to an arrest; that it was unreasonable; and that it was in violation of the Fourth Amendment of the Federal Constitution and Art. I, Par. XVI of the Constitution of Georgia.
At the hearing on the motion there was evidence that law enforcement officers found a motor and transmission unit in defendant's yard and examined it to determine whether it was a unit taken and removed from a stolen automobile which had earlier been found abandoned on a road two or three miles away. The officers went on defendant's property without a search warrant and examined the unit and thereupon assumed custody of it. A warrant was later thought to have been obtained to search defendant's house for other parts, but the warrant was believed to have been lost, or in any event could not be produced. The defendant was not at home at the time but was later taken into custody when he returned.
On the hearing on the motion to suppress, one Van K. Worthy, Special Agent of the Georgia Bureau of Investigation, testified that Worthy as a witness for the State testified on the trial of the indictment in respect of numbers and other identifying facts found by him on his examination of the motor and transmission unit in its relation to the automobile body, on the basis of which he testified as an expert that it was his opinion the unit had been removed from the automobile body.
Jones v. United States, 357 U.S. 493, 497, 78 S.Ct. 1253, 1256, 2 L.Ed.2d 1514. This doctrine has full application to the case before us. Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081; Johnson v. State, 111 Ga.App. 298, 141 S.E.2d 574.
This was not a case where there was a search without a warrant but incident to a lawful arrest. In such a case, a search may be lawful. See United States v. Rabinowitz, 339 U.S. 56, 70 S.Ct. 430, 94 L.Ed. 653. In the present case defendant was taken into custody after the search, after he returned home.
It is argued by the State that the inhibition of the Federal and State Constitutions is...
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