Butler v. State
| Decision Date | 14 November 1972 |
| Docket Number | No. 47618,No. 3,47618,3 |
| Citation | 194 S.E.2d 261,127 Ga.App. 539 |
| Parties | John F. BUTLER v. The STATE |
| Court | Georgia Court of Appeals |
Philip T. Keen, Kenneth R. Brown, Atlanta, for appellant.
Hinson McAuliffe, Sol., James L. Webb, Bernard J. Rapkin, Frank A. Bowers, Atlanta, for appellee.
Syllabus Opinion by the Court
Defendant appeals from an order denying his motion to suppress evidence and denying his prayers that the State produce an unnamed informant for cross examination. The motion to suppress attacks the following affidavit submitted to obtain a search warrant: On February 21, 1972 we received information from an informant who has proven reliable in the recent past and has given us information on lottery and gambling that has led to the arrest and conviction of at least two persons for gambling violations that the above-named subject is involved in the taking of bets on athletic contests at the above address. Informant states that he has been present on several different occasions at the above address and has seen Jack Butler in possession of papers bearing bets on ball games and has also made bets with the abovenamed personally and by telephone. Since receiving this information we have listened on an extension, with informant's permission, while our informant placed a bet with a person identified by informant as the person known to him by the above name. Telephone company records show the phone number called by our informant is listed at the above address in the name of J. F. Butler.' Held:
1. The basis of the attack upon the warrant and affidavit, as stated in the motion to suppress, is that 'this defendant verily believes that the alleged informant referred to in said warrant is totally unreliable, that if he did give to the affiant in said warrant any information, same was false and given with malice toward this defendant.' However, in this appeal defendant has abandoned these grounds and attempted to assert the distinctly new ground, not raised below, that nothing appears in the affidavit whereby the magistrate could determine the time of the events relied upon for probable cause and thus determine whether the information was current or stale, citing Fowler v. State, 121 Ga.App. 22, 172 S.E.2d 447, Windsor v. State, 122 Ga.App. 767, 178 S.E.2d 751, and Flournoy v. State, 123 Ga.App. 658, 182 S.E.2d 159. Under repeated rulings of this court and the Supreme Court, no reversible error appears where appellant abandons the grounds asserted below and attempts to assert new and distinct grounds in the appellate court for the first time.
Moreover, the grounds as asserted in this court are without merit. The affidavit states that 'On February 21, 1972, we received information from an informant . . . that the above-named subject is involved in the taking of bets on athletic contests at the above address.' (Emphasis supplied). This can only be construed to mean that the defendant, according to the informer, was violating the commercial gambling statute on February 21, 1972, only three days before the officer applied for and obtained the search warrant, and four days before the search and seizure. In the interval between the tipoff and the issuance of...
To continue reading
Request your trial
-
Taylor v. State
...Roddenberry v. State, 90 Ga.App. 66, 82 S.E.2d 40, and Smallwood v. State, 95 Ga.App. 766(1), 98 S.E.2d 602. In Butler v. State, 127 Ga.App. 539, 540(2), 194 S.E.2d 261, 263, these cases were distinguished in the following language: 'Thus in the cited cases, and the cases upon which they re......
-
Thornton v. State
...State, 130 Ga.App. 18, 19(3), 202 S.E.2d 223 (1973); Morrison v. State, 129 Ga.App. 558(5), 200 S.E,2d 286 (1973); Butler v. State, 127 Ga.App. 539(2), 194 S.E.2d 261 (1972); Staggers v. State, 101 Ga.App. 463, 465, 114 S.E.2d 142 (1960); Smallwood v. State, 95 Ga.App. 766(1), 98 S.E.2d 602......
-
Dunkum v. State, s. 51632
... ... Therefore, this contention is also without merit. See Crosby v. State,90 Ga.App. 63, 82 S.E.2d 38; Butler v. State, 127 Ga.App. 539(2), 194 S.E.2d 261 ... 5. Appellants Dunkum and Fain contend that the trial court erred when it refused to charge, on request, that the defendants could be convicted of a criminal attempt rather than the completed crime. The court, using the exact ... ...
-
Kitchens v. State
...No reversible error appears. Code § 38-1102; Pass v. State, 227 Ga. 730, 731(4), 182 S.E.2d 779 and cases cited; Butler v. State, 127 Ga.App. 539, 540(2), 194 S.E.2d 261; Welch v. State, 130 Ga.App. 18, 19(3), 202 S.E.2d 223; Estevez v. State, 130 Ga.App. 215, 216(2), 202 S.E.2d 686. 4. The......