Kametches v. State, 34053
| Decision Date | 19 December 1978 |
| Docket Number | No. 34053,34053 |
| Citation | 251 S.E.2d 232,242 Ga. 721 |
| Parties | KAMETCHES et al. v. The STATE. |
| Court | Georgia Supreme Court |
Glenn Zell, Atlanta, for appellants.
Hinson McAuliffe, Sol., Leonard W. Rhodes, Andrew J. Hairston, Asst. Sols., for appellee.
Appellants Chris Kametches, Donnie Scott and Richard Bond were convicted by a jury of violating Code Ann. § 26-2101(c), possession of obscene devices, and sentenced to twelve months on probation and fined. They appeal. We affirm as to Bond and reverse as to Kametches and Scott.
1. Enumerations of error 1 and 2 raise questions whether the trial court erred in failing to direct a verdict of acquittal or to grant a new trial for lack of evidence against Scott and Kametches. The only evidence offered to the jury was their unexplained presence in the outer office of the warehouse where the objects were seized. Charges were dropped against several other persons who were also present in the office when it was discovered that they were visitors. Mere presence is insufficient to support a conviction. Code Ann. § 38-109; Greeson v. State, 138 Ga.App. 572, 226 S.E.2d 769, affd., State v. Greeson, 237 Ga. 193, 227 S.E.2d 324 (1976); Denham v. State,144 Ga.App. 373, 241 S.E.2d 295 (1977). The trial court erred in failing to direct a verdict in favor of Scott and Kametches. Because of this ruling, we need not reach the remaining enumerations of error as to Scott and Kametches, but only as to Bond, who was shown to be the manager of the warehouse.
2. Enumeration 3 urges error in the overruling of Bond's motion to suppress. Bond claims that the evidence seized under the search warrant is the fruit of an earlier illegal search under a defective arrest warrant. Police officers originally came to the warehouse on December 1, 1976, with an arrest warrant for Kametches on an unrelated films charge. Bond informed the officers that Kametches was not there, but they proceeded from the offices into the warehouse area to check the identity of several persons who went in there when they arrived. The police saw the obscene devices in the warehouse, obtained a search warrant, returned the next day to execute it, and then arrested the three defendants who were in the office at the time. Bond urges that the police would not have been in the warehouse area and would not have seen these items but for the arrest warrant, that the arrest warrant was illegal, and therefore that the search warrant was also illegal.
Bond relies on the fact that the arrest warrant for Kametches was entitled "Bench Warrant." He cites Code Ann. § 27-801: "A bench warrant is one issued by a judge for the arrest of One accused of crime by a grand jury." (Emphasis supplied.) Then, he argues that since Kametches had not been indicted, but was under accusation, the "bench warrant" was defective. There is no merit to this reasoning.
A bench warrant is merely an arrest warrant issued by a judge. Code Ann. §§ 27-103 1 and 27-103.1 2 provide generally for arrest warrants. The "bench warrant" issued in this case contains all the information required by these sections. There is no requirement, as Bond urges, that the warrant itself be sworn to. It is presumably based on a proper accusation as was testified to by the assistant solicitor. Bond has produced no evidence to the contrary. Nor is there any merit to Bond's contention that the warrant is defective because the assistant signed the solicitor's name to it since this practice was routine and permitted by the solicitor, and, further, was unnecessary.
Finally, Bond urges that the search warrant should be suppressed because the officers had no legal right to make a total search of the premises. It is clear, however, that the objects were in plain view when the officers entered the warehouse to ascertain the identification of the people present on the premises while searching for Kametches.
Enumeration of error 3, asserting that the trial court erred in failing to grant Bond's motion to suppress, presents no grounds for reversal.
3. In his fourth enumeration of error, Bond attacks constitutionally the statute under which he was convicted. Some of his contentions, he admits were decided adversely to him in Sewell v. State, 238 Ga. 495, 233 S.E.2d 187 (1977) (). He now raises the questions whether the statute constitutes an invasion of privacy of adult and married couples to...
To continue reading
Request your trial
-
Bunyon v. Burke County
...is of no consequence since under Georgia law "[a] bench warrant is merely an arrest warrant issued by a judge." Kametches v. State, 242 Ga. 721, 251 S.E.2d 232, 234 (1978). Thus, Judge Hillis had no authority to issue a warrant forcing Bunyon to appear only before him and, by extension, had......
-
Pleasureland Museum, Inc. v. Beutter
...that a similar statute was not facially unconstitutional but remanding for "as applied" analysis); but see Kametches v. State, 242 Ga. 721, 251 S.E.2d 232, 234 (1978) (finding that a ban on distribution of sexual devices did not invade privacy of adult or married couples); Coberly v. State,......
-
State v. Stringer
...v. Illinois, 422 U.S. 590, 95 S.Ct. 2254, 45 L.Ed.2d 416, supra. JUDGMENT AFFIRMED. All the Justices concur. 1 In Kametches v. State, 242 Ga. 721(2), 251 S.E.2d 232 (1978), this Court, in deciding the validity of a "bench warrant," based its decision in part upon the routine practice and pr......
-
Whisenhunt v. State
...442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39, where the jury is also instructed such presumption may be rebutted. Kametches v. State, 242 Ga. 721, 724, 251 S.E.2d 232; Skrine v. State, 244 Ga. 520, 260 S.E.2d 7. Code Ann. § 26-2101(c) is constitutional. Dyke v. State, 232 Ga. 817(1), 209 S.E.......
-
Table of Cases
...L.Ed. 754 (1953), 740, 1428 Kaiser Aetna v. United States, 444 U.S. 164, 100 S.Ct. 383, 62 L.Ed.2d 332 (1979), 983 Kametches v. Georgia, 251 S.E.2d 232 (Ga. 1978), 1284 Kansas v. Colorado, 185 U.S. 125, 22 S.Ct. 552, 46 L.Ed. 838 (1902), 667 Kansas v. Crane, 534 U.S. 407, 122 S.Ct. 867, 151......
-
The Due Process Clauses of the 5th and 14th Amensments
...unconstitutional); PHE v. Mississippi, 877 So. 2d 1244 (Miss. 2004); Webber v. Texas, 21 S.W.3d 726 (2000); Kametches v. Georgia, 251 S.E.2d 232 (Ga. 1978) (statutes [270] On this topic, see generally Anne C. Hydorn, Does the Constitutional Right to Privacy Protect Forced Disclosure of Sexu......