Cook v. State, 42940

• Decision Date: 13 September 1967
• Docket Number: No. 2,No. 42940,42940,2
• Citation: Cook v. State, 116 Ga.App. 304, 157 S.E.2d 160 (Ga. App. 1967)
• Parties: James B. COOK v. The STATE
• Court: Georgia Court of Appeals

Page 160

157 S.E.2d 160

116 Ga.App. 304

James B. COOK v. The STATE.

No. 42940.

Court of Appeals of Georgia, Division No. 2.

Sept. 13, 1967.

O. L. Crumbley, Macon, for appellant.

Jack, J. Gautier, Sol. Gen., Fred M. Hasty, Macon, for appellee.

Syllabus Opinion by the Court

PANNELL, Judge.

The defendant was indicted, tried and convicted on two counts of burglary and sentences thereon were entered on November 24, 1965. He filed a notice of appeal December 15, 1965, in which he instructed the clerk to omit all of the record except the indictment, the verdict of the jury, the judgment and sentence of the court and 'that portion of the record beginning with defendant's motion that the court inquire into the legality of the arrest and subsequent search of the vehicle being operated by this defendant and ending with the court's ruling on this motion.'

The transcript of that portion of the proceedings was filed December 6, 1965. The appellee on December 30, 1965, in accordance with the statute, designated 'all of the testimony of all witnesses including the defendant's statement given on the trial of the case,' to be included in the record on appeal, which was served on attorney for appellant on the same day. The entire transcript of the proceedings was filed with the clerk of the lower court on May 18, 1967. The record and both transcripts were filed in this court on May 23, 1967. The enumerations of error were as follows: '1. The evidence was insufficient to authorize the plaintiff's conviction. 2. In that the court erred in overruling the plaintiff's motion to exclude from the evidence the material obtained from plaintiff's vehicle following an illegal arrest and illegal search and seizure. 3. In that the court erred in failing to exclude from the evidence testimony concerning a violation of probation on the part of this defendant. 4. In that the court erred in admitting into evidence a tire tool over plaintiff's objection.' Held:

Pretermitting the question of whether the entire appeal should be dismissed because of the late filing of a major portion of the transcript of the proceedings (Davis v. Davis, 222 Ga. 579, 151 S.E.2d 123; Threatt v. McElreath, 223 Ga. 153, 154 S.E.2d 20; Fleming v. Sanders, 223 Ga. 172, 154 S.E.2d 14; Joiner v. State, 223 Ga. 367, 155 S.E.2d 8), it is apparent from these decisions that the portion of the transcript filed at the instance of the appellee almost a year and a half after notice of appeal was filed cannot be...