Hall v. State

• Decision Date: 19 October 1977
• Docket Number: No. 32371,32371
• Citation: 239 Ga. 832,238 S.E.2d 912
• Court: Georgia Supreme Court
• Parties: Jimmy HALL, Jr. v. The STATE.

Page 912

238 S.E.2d 912

239 Ga. 832

Jimmy HALL, Jr. v. The STATE.

No. 32371.

Supreme Court of Georgia.

Oct. 19, 1977.

Robert D. Peckham, Athens, for appellant.

Harry N. Gordon, Dist. Atty., B. Thomas Cook, Jr., Asst. Dist. Atty., Athens, Arthur K. Bolton, Atty. Gen., Atlanta, for appellee.

MARSHALL, Justice.

The defendant appeals from his convictions of murder and armed robbery, for which he received two consecutive life sentences.

1. Enumeration of error 1 is the denial of the appellant's motion to suppress evidence obtained as a result of a seizure of property which was alleged to have been illegal for several reasons. The evidence shows that the police, acting on a tip from an informant, obtained the consent of the female lessee of an apartment to a search thereof. The evidence further showed that she and the appellant were living together in one bedroom of that apartment.

The appellant urges that the search was illegal because of lack of probable cause and failure to obtain a search warrant. "Probable cause and a warrant are not required for a search and seizure which is conducted pursuant to consent. Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854." McKendree v. State, 133 Ga.App. 295, 296, 211 S.E.2d 154 (1974). " '(W)hen the prosecution seeks to justify a warrantless search by proof of voluntary consent, it is not limited to proof that consent was given by the defendant but may show that permission to search was obtained from a third party who possessed common authority over or other sufficient relationship to the premises or effects sought to be inspected.' United States v. Matlock, 415 U.S. 164, 171, 94 S.Ct. 988, 993, 39 L.Ed.2d 242, 249-250 (1974)." Peek v. State, 239 Ga. 422(2), 238 S.E.2d 12 (1977). In Peek, the accused was living in one bedroom of his sister's house. Certainly consent could be given here, where the accused cohabited with the lessee in the same bedroom.

The appellant contends that the search was illegal for the additional reasons that it was a general search, that the informant was unreliable, and the informant's statement was hearsay. These are arguments which might appropriately be directed to a search with a warrant, where probable cause is a factor, and are not germane to a search by consent. The appellant claims that the police lured him away from his paramour's apartment in order to facilitate searching it. Even assuming that this was in some way reprehensible conduct, the police denied that this was their motive. Moreover, the search was authorized by the lessee's consent, as we have held, supra.

2. Enumerated error 2 contends that the trial judge improperly commented on the evidence by using a hypothetical illustration in his charge to the jury. The language objected to was in part, ". . . thus, if two persons form a common intent and purpose to go to the place of business of another and commit an armed robbery at such place of business . . ." The charge went on to set forth the principle that the act of murder by one coconspirator would be attributed to the other coconspirator.

"Where the trial judge in charging the jury correctly states the law governing the case, but exception is taken to an illustration used by the court explanatory of the illustration given, this court will not narrowly scrutinize the illustration, if satisfied that, whether right or wrong, it was not calculated to mislead, and did not in fact mislead, the jury." Collier v. State, 154 Ga. 68, 79, 113 S.E. 213 (1922). The illustration given by the judge tended to show what is meant in law by the attribution of the acts of one coconspirator to another, and was an apt illustration of the idea intended to be conveyed. Since the real question in this case was the identity of the coconspirators, the facts of the crimes not being in dispute, this instruction could hardly have misled or confused the jury.

3. The appellant contends that the trial judge erred in permitting a witness for the prosecution to remain in the courtroom after a timely request for sequestration had been made. See Code § 38-1703. The witness involved was the nominal prosecutor, who had been directly involved in several phases of the investigation of the case against the co-defendant. The prosecutor stated in his place that he needed the witness' assistance during the trial. Under these circumstances, there was no abuse of discretion by the trial judge. See Disby v. State, 238 Ga. 178(1), 231 S.E.2d 763 (1977) and cits. Enumerated error 3 is without...