Ellenburg v. State

• Decision Date: 18 April 1966
• Docket Number: No. 41701,No. 2,41701,2
• Citation: 149 S.E.2d 173,113 Ga.App. 585
• Parties: J. L. ELLENBURG et al. v. The STATE
• Court: Georgia Court of Appeals

Page 173

149 S.E.2d 173

113 Ga.App. 585

J. L. ELLENBURG et al. v. The STATE.

No. 41701.

Court of Appeals of Georgia, Division No. 2.

April 18, 1966.

Rehearing Denied May 4, 1966.

Syllabus by the Court

At the time the Constitution was adopted, stolen or forfeited property, or property liable to duties, and concealed to avoid payment of them, excisable articles, and books required by law to be kept with respect to them, counterfeit coin, burglar's tools and weapons, implements of gambling, and many other things of like character might be searched for in home or office, and, if found, might be seized undr search warrants lawfully applied for, issued and executed.

Ellenburg and others were indicted for gambling by soliciting bets and wagers on the results of football games. On the trial of the case evidence was offered as to the seizure of 'flash paper' with which papers on a desk were ignited by the defendants, together with sheets of paper showing odds on football games and lists of wagers accepted, cash, a pill, utility bills, 2 portable radios, a lighter, and federal wagering tax forms. Following conviction the defendants certioraried the case to the Superior Court of Fulton County, contending that the search warrant, by means of which peace officers entered the premises, was void because executed for an unauthorized purpose. The warrant directed that peace officers to search the premises for 'records, money, and other bookmaking paraphernalia described in the affidavit' in support of the criminal charge. The affidavit, signed by an assistant to the solicitor general, recited the method of soliciting bets on athletic contests, that defendants were operating a bookmaking establishment on the premises and had concealed therein certain paraphernalia including records and bets, names of betters and amounts and financial records showing the status of the bookmaking business, together with flash paper to be used in destroying records and large sums of money representing wagers. The denial of the petition for certiorari is the basis of this appeal.

Wesley R. Asinof, Atlanta, for appellant.

Lewis R. Slaton, Sol. Gen., J. Walter LeCraw, William E. Spence, Sol., Atlanta, Hinson McAuliffe, Frank A. Bowers, Atlanta, for appellee.

HALL, Judge.

'A search warrant may be issued only for the making of a search authorized at common law or by statute.' Johnson v. State, 111 Ga.App. 298, 302, 141 S.E.2d 574, 579. Prior to the Search and Seizure Act of 1966 (Ga.L.1966, p. 567), there was no statute expressly authorizing the issuance of a search warrant for the implements of gambling. The common law of Georgia is 'the Common Law of England, and such of the Statute Laws as were usually in force before the Revolution, with the following limitations'-the prohibitions of the Constitution of the United States, the Georgia Constitution and the statutes of this State. Flint River Steamboat Co. v. Foster, 5 Ga. 194(5).

The defendants contend that at the time of the Revolution the law did not authorize the issuance of a search warrant for gambling implements. We disagree. A unanimous opinion of the Supreme Court of the United States provides: '* * * at the time the Constitution was adopted stolen or forfeited property, or property liable to duties and concealed to avoid payment of them, excisable articles and books required by law to be kept with respect to them, counterfeit coin, burglars' tools and weapons, implements of gambling 'and many other things of like character' might be searched for in home or office and if found might be seized, under...