Lane v. State

• Decision Date: 03 May 1972
• Docket Number: No. 47126,No. 1,47126,1
• Citation: Lane v. State, 190 S.E.2d 576, 126 Ga.App. 375 (Ga. App. 1972)
• Parties: Howard H. LANE v. The STATE
• Court: Georgia Court of Appeals

Page 576

190 S.E.2d 576

126 Ga.App. 375

Howard H. LANE v. The STATE.

No. 47126.

Court of Appeals of Georgia, Division No. 1.

May 3, 1972.

Rehearing Denied May 26, 1972.

Philip S. Davi, Atlanta, for appellant.

Lewis R. Slaton, Dist, Atty., Richard E. Hicks, Joel M. Feldman, James H. Mobley, Jr., Atlanta, for appellee.

Syllabus Opinion by the Court

EVANS, Judge.

Defendant was indicted, tried and convicted for possession of heroin. He was sentenced to serve two years, and he appeals from the judgment of conviction and sentence. Held:

1. Defendant contends that he was arrested and his automobile and person searched without a warrant, and upon this premise he moved to suppress certain evidence disclosed as a result of said search. He does not support the grounds of his motion with the transcript of the evidence heard at that hearing.

2. At the beginning of the trial of this case on its merits, defendant moved that his motion to suppress be reconsidered and granted. Like the first motion, defendant does not support this motion for reconsideration with evidence, and it was properly overruled by the trial court. However, his only enumeration of error here was on the trial court's refusal to allow him to argue his motion, and this ground is without merit. See Sullivan v. State, 222 Ga. 691, 692, 152 S.E.2d 382.

3. Defendant filed a challenge to the array of jurors, contending he was a black citizen, and that blacks were not represented in the jury box of Fulton County in the proportion that they bear to the total population of said county. He did not allege or prove a history of a systematic, purposeful discrimination as to the black race, and there was no error in overruling said challenge. Whitus v. Georgia, 385 U.S. 545, 87 S.Ct. 643, 17 L.E.2d 599; Lingo v. State, 224 Ga. 333(3), 162 S.E.2d 1; Kemp v. State, 226 Ga. 506, 175 S.E.2d 869.

4. Defendant enumerates error on the trial court's admission in evidence of a certain syrings, over his objections, because same was not properly identified and had been illegally seized. The evidence was sufficient to properly identify the syringe and to show that the arrest and search were lawful.

5. Defendant objected to the State's introduction into evidence of three pistols which were found concealed under the seat of the automobile in which he was riding at the time of his arrest. He contended said pistols were immaterial to the charge of possessing heroin and were prejudicial to him. Unless these guns could in some way illustrate the guilt or innocence of the defendant as to the charge of possessing heroin, they were inadmissible and prejudicial. In Cox v. State, 165 Ga. 145, 139 S.E. 861, the Supreme Court held that where the evidence may illustrate the defendant's guilty knowledge, or bear upon the question of his identity, or tends to prove prior attempts by the accused to commit the same crime, or to prove malice, intent, motive, or the like, it is admissible. Lacking one of these elements, the above decisions hold introduction of evidence as to another and separate crime is erroneous and demands a new trial. The possession of three pistols could have caused the jury to believe defendant was a lawless and dangerous individual. How could these three pistols illustrate the State's case against defendant for possessing heroin; and what value could their introduction have except to prejudice the jury against him? We hold this to be reversible error.

6. During the preliminary...