Bramblett v. State

• Decision Date: 10 September 1976
• Docket Number: No. 3,No. 52414,52414,3
• Parties: Howard BRAMBLETT v. The STATE
• Court: Georgia Court of Appeals

Page 484

229 S.E.2d 484

139 Ga.App. 745

Howard BRAMBLETT v. The STATE.

No. 52414.

Court of Appeals of Georgia, Division No. 3.

Sept. 10, 1976.

Rehearing Denied Oct. 1, 1976.

William Ralph Hill, Jr., LaFayette, for appellant.

Samuel J. Brantley, Dist. Atty., Dalton, for appellee.

QUILLIAN, Judge.

Defendant was indicted jointly with his brother for the offenses of burglary and theft by taking. His first trial resulted in a conviction for theft by taking which was reversed by this court in Bramblett v. State, 135 Ga.App. 770, 219 S.E.2d 26. He was granted a new trial. He appeals his second conviction. Held:

1. After reversal of the first conviction, a new trial was directed and counsel for dedendant-who did not represent him during the first trial, filed a 'Demurrer to Indictment.' This document was actually a general and a special demurrer. It alleged that the indictment failed to set forth an offense, did not allege the crime with specificity, nor sufficiently describe the property allegedly taken. The demurrer was 'overruled and denied.'

The trial court held that the demurrer was not timely filed. We agree. Demurrers must be seasonably filed or the right to object is waived. Jackson v. State, 112 Ga.App. 834(1b), 146 S.E.2d 541; Bryant v. State, 224 Ga. 235, 161 S.E.2d 312. A special demurrer must be filed before the defendant pleads to the merits or it is too late. Burns v. State,191 Ga. 60, 63, 11 S.E.2d 350; Robertson v. State, 127 Ga.App. 6, 192 S.E.2d 502. Legal precedent is more confusing as to when a general demurrer, or its legal equivalent, must be filed.

Our Supreme Court has stated that defects in an indictment or accusation must be taken advantage of by demurrer before trial, or by a motion in arrest of judgment after conviction. Rucker v. State, 114 Ga. 13(1), 39 S.E. 902. Accord, Davis v. State, 105 Ga.App. 5(1), 123 S.E.2d 271. However, in Gilmore v. State, 118 Ga. 299, 45 S.E. 226, the court held that if 'the indictment or accusation is so defective that judgment upon it would be arrested, attention may be called to this defect at any time during the trial, and it may be quashed on oral motion.' Id. at 299-300, 45 S.E.2d at 227. Our Supreme Court has also held that regardless of how such motions are designated, if filed under Code § 27-1501, they should be made in writing upon the defendant's being arraigned or they will be deemed to have been waived. Bryant v. State, 224 Ga. 235, 161 S.E.2d 312, supra.

These holdings are consistent with the earlier precedent of Reddick v. State, 149 Ga. 822, 102 S.E. 347, which held that in a case where the defendant was neither arraigned nor entered a plea 'after the introduction of evidence upon the merits . . . the defendant will be deemed to have waived formal arraignment, and it is then too late for him to demur; and the court did not err in refusing to allow the defendant to demur, nor in overruling the motion to quash.' From the foregoing, we have concluded that demurrers, both general and special, must be filed before a plea is entered or they will be held to have been waived.

The foregoing determination was necessary before proceeding to the second part of this issue. What is the effect of entering a demurrer before a new trial where no demurrer was filed before the first trial? '(M)ost of the decisions are against allowing an attack to be made upon the indictment . . . (for the first time, before a new trial) merely because of reversal or setting aside of a conviction.' Annot. 145 A.L.R. 493; 41 Am.Jur.2d Indictments and Informations, 1060, § 291; 42 C.J.S. Indictments and Informations § 199, p. 1168. If the setting aside of the conviction causes the proceedings to revert simply to the point where a new trial would be held on the old issues, leaving unaffected any plea to the merits previously filed, defendant is subject to the general rule 'that after a plea to the merits a motion to quash an indictment (or demurrer) is too late . . . (T)he reversal or setting aside of the conviction would not revive the right to attack the indictment or information . . .' Annot. 145 A.L.R. 493. Grant of a new trial does not authorize entry of a motion or demurrer which had not been made at the 'proper time' in the first trial. Nations v. United States, 52 F.2d 97 (8th Cir. 1931); 42 C.J.S. Indictments and Informations § 199, p. 1168.

We need not reach the merits of the demurrer as it was not seasonably filed.

2. Defendant alleges that the trial court's failure to approve his motion to suppress was error. We do not agree. The warrant to search the van which revealed the goods allegedly stolen was issued by a justice of the peace. Defendant contends that the justice of the peace was not a 'neutral and detached magistrate . . . as he . . . (was) entitled to receive $5.00 for the issuance of every search warrant and is entitled to receive no amount if one is refused . . .'

Search warrants may be issued only by neutral and detached parties. Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971). A justice of the peace is a proper official to issue a search warrant. Veasey v. State, 113 Ga.App. 187(1), 147 S.E.2d 515; Dye v. State, 114 Ga.App. 299(1), 151 S.E.2d 164. He is 'not (dis)gualified . . . because he was to be paid for so doing(,) the cost allowed (by law), and to receive nothing if he refused to issue the warrant . . .' Commonwealth v. Dabbierio, 290 Pa. 174, 138 A. 679, 681; 79 C.J.S. Search and Seizure § 72a, p. 852. There is no merit in this contention. Connally v. State, 237 Ga. 203, 227 S.E.2d 352.

Defendant also alleges there was not sufficient information in possession of the law enforcement officials 'to justify a warrantless search and seizure of the van' of the defendant. We disagree with this assessment on two grounds: First, there was not a warrantless search of the van, and secondly, there was sufficient information to establish probable cause for a warrantless search of the van had it occurred.

An FBI special agent and a Dalton police officer received information from an informant that yarn was being stolen from the Crown Cotton Mill and that a named individual would be driving a light colored, Ford Econoline van, with a certain license number, on a certain date, and that the yarn would be taken after midnight. Prior information from this informant 'had proven to be correct.' While the FBI agent and police officer were driving to the stakeout they drove up behind a van, could see through the back windows that it was empty, and when it turned into the Crown Cotton Mill they observed that the tag number was the one that they had been given by the informant.

The van departed the warehouse area at 12:55 a.m. and the FBI agent followed it. A check with the manager of the cotton mill and the warehouse prior to that evening showed that 'nothing was to legitimately leave the warehouse that evening . . .' When the van slowed to turn into a residence the FBI agent came up closer behind it and could see that the 'back windows were obscured by something inside.' After the van had parked at the residence, the FBI agent walked up beside the van and could see through the windows that it contained cardboard boxes. The license tag was the same number as that given them by the informant and the one that they had seen entering the warehouse area earlier that evening. The defendant was driving the van and was placed under arrest. The Dalton police officer arrived shortly thereafter and had a wrecker tow the van to the City Hall where a search warrant was obtained. We find no merit to this enumeration of error. Probable cause for issuance of the search warrant and search of the motor vehicles was established. Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970); Register v. State, 124 Ga.App. 136, 183 S.E.2d 68; Underhill v. State, 129 Ga.App. 65(2), 198 S.E.2d 703.

3. Enumerated as error is admission of hearsay evidence over objection of defendant. The district attorney explained that such testimony was 'to show course of conduct as to why (the police officer) was out there . . .' The court ruled that he would 'let it in for that purpose and instruct the jury whatever the conversation is would be admitted solely to show conduct on the part of the officer, and not for any probative value.' Upon objection by defense to the testimony of the second police officer, the court ruled that he would 'let it in on the same basis as (he) did before . . . to show his action and what he did, not to prove the truth of a statement given to him, it would have no probative value.' Hearsay is admissible to explain conduct. Code § 38-302. We find no prejudice to defendant due to the limited and correct ruling of admissibility. Jones v. State, 224 Ga. 283(3), 161 S.E.2d 302; Tanner v. State, 228 Ga. 829(3), 188 S.E.2d 512.

4. The state introduced the return of the police officer who executed the search warrant showing the inventory of property recovered from the van defendant was driving. It showed the 'Case No.' and 'Inv. No.' of the yarn allegedly taken in the theft. Defendant contends that it was not properly certified to be introduced in evidence.

'Any writing or record, whether in the form of an entry in a book or otherwise, made as a memorandum or record of any act, transaction, occurrence or event shall be admissible in evidence in proof of said act, transaction, occurrence or event, if the trial judge shall find that it was made in the regular course of any business, and that it was the regular course of such business to make such memorandum or...