Dutton v. State, 27010

• Citation: 188 S.E.2d 794,228 Ga. 850
• Decision Date: 06 April 1972
• Docket Number: No. 27010,27010
• Parties: Hubert Allen DUTTON v. The STATE.
• Court: Georgia Supreme Court

Page 794

188 S.E.2d 794

228 Ga. 850

Hubert Allen DUTTON v. The STATE.

No. 27010.

Supreme Court of Georgia.

April 6, 1972.

Telford, Stewart & Stephens, Charles W. Stephens, Gainesville, for appellant.

Jeff C. Wayne, Dist. Atty., Gainesville, Arthur K. Bolton, Atty. Gen., Harold N. Hill, Jr., Executive Asst. Atty. Gen., Courtney Wilder Stanton, William F. Bartee, Jr., Asst. Attys. Gen., Atlanta, for appellee.

Syllabus Opinion by the Court

HAWES, Justice.

Hubert Allen Dutton was indicted by separate bills for the offense of murder and for the offense of burglary. He pleaded not guilty and elected to have the two indictments tried together. The jury returned separate verdicts, finding him guilty of murder with a recommendation of mercy and finding him guilty of the offense of burglary and fixing his punishment at five years imprisonment. He was sentenced to life imprisonment on the murder conviction and to serve five years on the burglary conviction. He filed a motion for a new trial which, as amended, was overruled, and he appealed from the judgments of conviction, from the sentences and from the order overruling his motion for a new trial.

1. The accused made a motion to suppress certain physical evidence which he alleged was obtained by an illegal search. That motion was overruled and that judgment forms the basis for appellant's first ground of enumerated error. Not long after the burglary was alleged to have been committed, accused and two companions were apprehended by police officers who had set up a road block in the outskirts of Cornelia. The accused was driving the 1965 Chrysler automobile in which the parties were riding. By the use of flashlights the officers were able to observe on the seats and on the floorboard of the automobile two shotguns and numerous items of merchandise. Based on information obtained by communication with the police in Hall County the Cornelia police detained appellant and his companions and carried them to the police station in Cornelia. One of the police officers drove the Chrysler to the police station in Cornelia. Sometime after the arrival at the police station in Cornelia and after the accused and his companions had been placed under arrest, a search was made of the automobile where the evidence in question was recovered. No warrant was obtained for this search. However, it appears that the automobile was a stolen automobile and was not the property of accused, nor was the accused driving the same with the permission of the owner or with the permission of anyone entitled to the possession of the automobile. Under these circumstances, the accused had no standing to invoke constitutional guarantees against its search, even if the same should apply to the search of an automobile and he cannot invoke those guarantees so as to exclude the evidence in question. Roach v. State, 221 Ga. 783(8), 147 S.E.2d 299; Marsh v. State, 223 Ga. 590(1), 157 S.E.2d 273. The right to object to an unreasonable search and seizure is a privilege which is personal to those whose rights have been infringed, and the appellant here was not entitled to object to the search of an automobile which was not his property or in which he had no right of exclusive possession. This ground shows no cause for a reversal.

2. Appellant contends that the court erred in denying his motion for a continuance. The sole basis upon which he sought a continuance was that there had been a large amount of newspaper publicity concerning the crime of which the accused was charged and that this had so inflamed the populace of Hall County that it was impossible for him to obtain a fair and impartial jury to try his case. A motion for a continuance is addressed to the sound discretion of the trial judge, and the refusal to grant a continuance will not be disturbed by the appellate courts unless it clearly appears that the judge abused his discretion in this regard. Moore v. State, 202 Ga. 357(2), 42 S.E.2d 251; Butts v. State, 211 Ga. 16(1), 83 S.E.2d 610; Harris v. State, 211 Ga. 327, 328, 85 S.E.2d 770; Corbin v. State, 212 Ga. 231(1), 91 S.E.2d 764; Hall v. State, 213 Ga. 557(1), 100 S.E.2d 176. The motion for a continuance in this case is based on the ground of inflammatory newspaper publicity concerning the crime and stands on substantially the same footing as a motion for a change of venue on that ground. While there was a general showing that the newspaper in which the alleged inflammatory articles had been carried was widely read in Gainesville and in Hall County, Georgia, where the trial was to be held, there was no showing that a fair and impartial trial could not be had in Hall County or that the jurors who had been summoned to try the case had read the articles and formed fixed opinions as to the guilt or innocence of the accused from reading them, or that the right of the accused to have a fair and impartial jury could not be adequately protected by his right of challenge to the poll, to have voir dire questions propounded and to have...