Mitchell v. State, 60740
| Decision Date | 15 January 1981 |
| Docket Number | No. 60740,60740 |
| Citation | 276 S.E.2d 658,157 Ga.App. 146 |
| Parties | MITCHELL v. The STATE. |
| Court | Georgia Court of Appeals |
Gary A. Sinrich, Hinesville, for appellant.
Dupont K. Cheney, Dist. Atty., Kenneth R. Carswell, Asst. Dist. Atty., for appellee.
Appellant Mitchell was convicted of rape, armed robbery, and three counts of burglary. He enumerates five errors below. Held :
1. Mitchell urges that the trial court erred in overruling his motion to suppress evidence. In his brief, he states only that the affidavit for the search warrant and the additional information furnished to the justice of the peace were insufficient to establish probable cause for the search of his trailer. He cites no authority for this contention and gives no reason or rationale why the affidavit and information were insufficient in his opinion. He therefore has abandoned this enumeration of error under Court of Appeals Rule 15(c)(2). Wilkie v. State, 153 Ga.App. 609, 266 S.E.2d 289. Nevertheless, we do not think the affidavit and information supporting the search warrant is insufficient to establish probable cause. The trial court found it to be sufficient. The presumption on appeal is with the ruling of the trial court. Johnson v. State, 233 Ga. 58, 209 S.E.2d 629; Megar v. State, 144 Ga.App. 564, 241 S.E.2d 447. We find no reason to disagree and appellant has not persuaded us that we should. McKenzey v. State, 127 Ga.App. 304(1), 193 S.E.2d 226.
2. Appellant urges that the trial court erred in assuming the role of prosecutor and questioning the victim and state's witness, Sukie Bartel. He contends the judge implied to the jury that the vital elements of the crime had been proven, when he asked Ms. Bartel: "... This questioning was not error. The record shows the witness was a Korean woman; she was having difficulty comprehending the prosecutor's question and was obviously highly nervous and confused. The trial judge's questions did not imply that any element had been proven but rather sought to establish whether any had been established. The trial judge has the right to question witnesses to develop fully the truth of the case, the extent of the questioning being for the judge's discretion. Eubanks v. State, 240 Ga. 544, 547, 242 S.E.2d 41.
3. The appellant was not entitled to a directed verdict as to armed robbery on grounds that there was insufficient evidence that money was taken from Ms. Bartel by means of an offensive weapon. The evidence shows that two men came into her apartment with a knife and a stick; they demanded money from her and threatened to kill her if they did not get it. After she told them she did not have money, the two men looked around her apartment and found $4. This constitutes armed robbery. Welch v. State, 235 Ga. 243, 245, 219 S.E.2d 151 and Battle v. State, 155 Ga.App. 541, 542, 271 S.E.2d...
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