Mitchell v. State, 51086

• Decision Date: 07 October 1975
• Docket Number: No. 51086,No. 3,51086,3
• Citation: 221 S.E.2d 465,136 Ga.App. 390
• Parties: W. J. MITCHELL v. The STATE
• Court: Georgia Court of Appeals

Page 465

221 S.E.2d 465

136 Ga.App. 390

W. J. MITCHELL v. The STATE.

No. 51086.

Court of Appeals of Georgia, Division No. 3.

Oct. 7, 1975.

Rehearing Denied Oct. 31, 1975.

Strickland & Costley, John Virgil Costley, Jr., Covington, for appellant.

John Strauss, Dist. Atty., Cecil T. Blanton, Asst. Dist. Atty., Convington, for appellee.

STOLZ, Judge.

The defendant appeals from his conviction of one count of forgery in the first degree and five counts of forgery in the second degree, and the sentences therefor.

1. The verdict and judgment were authorized by evidence that the defendant attempted to cash a stolen check to pay for certain attempted purchases; that when the store owner refused to cash the check, the defendant fled rapidly in an automobile; that the automobile, when subsequently stopped by the sheriff, contained the defendant as a passenger and, as revealed by a search under warrant, the crumpled-up check he had attempted to cash (at his feet) and five more checks stolen from the same maker (three under the driver's seat and two in the glove compartment).

2. Enumeration of error 1 contends that the checks introduced in evidence, ownership or proprietary interest in which the accused denied, and which were taken from the automobile of another in which the accused was a passenger, were inadmissible as the fruit of an illegal search and seizure, on the ground of the insufficiency of the warrant on its face. 'In Dutton v. State, 228 Ga. 850(1), 188 S.E.2d 794 it was held: '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. " Dixon v. State, 231 Ga. 33(5), 200 S.E.2d 138. See also Shelton v. State, 111 Ga.App. 351(8), 141 S.E.2d 776; Norrell v. State, 116 Ga.App. 479(3), 157 S.E.2d 784 and cits. The motion to suppress the evidence was properly denied.

3. Enumeration of error 2 contends that the defendant was denied due process of law when the state, upon cross examination of the defendant, elicited from him admissions of his prior convictions of other offenses, without showing that the defendant either had had or had waived counsel in such prior convictions. The state contends that the evidence was admissible to impeach the defendant's statement on direct examination, 'I always believed in the law and always lived by the law,' which allegedly put his character in evidence.

'In Loper v. Beto, 405 U.S. 473, 92 S.Ct. 1014, 31 L.Ed.2d 374, the Supreme Court of the United States held that the use of convictions constitutionally invalid under Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799, 93 A.L.R.2d 733, to impeach a defendant's credibility, deprives him of due process of law. See also Burgett v. Texas, 389 U.S. 109, 88 S.Ct. 258, 19 L.Ed.2d 319; Clenney v. State, 229 Ga. 561, 563, 192 S.E.2d 907.' Turner v. Hopper, 231 Ga. 672, 673, 203 S.E.2d 481, 482. Burgett v. Texas, 389 U.S. 109, 115, 88 S.Ct. 258, 19 L.Ed.2d 319, supra, holds that such use is prohibited 'either to support guilt or enhance punishment for another offense.'

In Turner v. Hopper, supra, 231 Ga. p. 673, 203 S.E.2d p. 482, the court held that 'A fair interpretation of the language in the appellant's statement, considered in the context of the whole statement, leads inescapably to the conclusion that the appellant was denying only the commission of the robberies with which he was presently charged, and his prior conviction was not admissible to impeach this language.' A similar conclusion might possibly be reached from the statement in the case sub judice; however, rebuttal evidence for even this limited purpose would still be subject to the prohibition of convictions constitutionally invalid.

Notwithstanding the above, however, the record discloses that counsel for the defendant neither objected to the admission of the evidence during the trial nor complained of it in his amended motion for new trial. 'Objections to evidence cannot be raised for the first...