Partain v. State, 51969
| Court | United States Court of Appeals (Georgia) |
| Writing for the Court | McMURRAY; MARSHALL; PANNELL |
| Citation | 139 Ga.App. 325,228 S.E.2d 292 |
| Parties | J. D. PARTAIN v. The STATE |
| Docket Number | No. 2,No. 51969,51969,2 |
| Decision Date | 29 June 1976 |
Page 292
v.
The STATE.
Rehearing Denied July 16, 1976.
Page 293
[139 Ga.App. 327] Herbert Shafer, Atlanta, for appellant.
Lewis R. Slaton, Dist. Atty., Joseph J. Drolet, Carole E. Wall, H. Allen Moye, Asst. Dist. Attys., Atlanta, for appellee.
[139 Ga.App. 325] McMURRAY, Judge.
The defendant was indicted in two counts for violation of the Georgia Controlled Substances Act: possession of marijuana and possession of cocaine. He was acquitted on the marijuana charge and convicted of possessing cocaine. He appeals the judgment of conviction and the denial of his motion for new trial. Held:
1. The evidence shows that the defendant's apartment was searched by agents of the Georgia Bureau of Investigation. The agents found a pair of scales with a white residue on the metal pans and a pipe containing a leafy material. The State Crime Lab analyzed the white residue on the metal pans and found it positive for cocaine. The examiner from the Crime Lab testified that the white residue on the pans was slightly visible; it was so slight that it could not be weighed in the Crime Lab. In order to determine the nature of the residue, the examiner washed the pans in an acid solution and examined the acid washings. This acid washing was then thrown away. The examiner testified that the powder was positive for cocaine, but he could not determine the concentration of cocaine in the powder.
2. Defendant argues that he was denied due process of law because his expert was unable to examine the alleged cocaine. This court has held that a defendant's constitutional rights are not violated by the absence of an independent analysis of a drug which has been examined by the State Crime Lab. See Patterson v. State, 138 Ga.App. 290, 226 S.E.2d 115. Accordingly, this enumeration of error is without [139 Ga.App. 326] merit.
3. Defendant urges error in the court's refusing to grant a new trial on the grounds that the prosecutor made prejudicial statements during closing argument. No objection was made to the prosecution's comments during the trial of the case. '(W)hen improper argument is made to the jury by an attorney for one of the parties, it is necessary, in order to make the same a basis for review, that opposing counsel make proper objection to it at the time made or invoke some ruling or instruction from the court respecting it, either by way of reprimanding counsel, or of instructing the jury to disregard it, or of declaring a mistrial. A party cannot during the trial ignore what he thinks to be an injustice, take his chance on a favorable verdict, and
Page 294
complain later.' Daniels v. State, 230 Ga. 126(2), 195 S.E.2d 900.4. Defendant made a motion after the trial of the case to supplement the record with his proposed requests to charge. The trial court denied the motion and stated in its order: 'Defendant's alleged requests to charge do not comply with the rules of Court. The affidavits are inconsistent with the record and with the Court's recollection as to the matter. In view of the above, the Court expressly denies the defendant's motion and amended motion to supplement the record.' We find no error in the trial court's denial of the defendant's motion to supplement the record.
5. Defendant enumerates error to the trial court's failure to rule as a matter of law that there was an insufficient amount of the alleged drug to convict the defendant. This court has never...
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Bright v. State, S94P1617
...amount of cocaine, he may not be convicted of the possession thereof. The law in this state is to the contrary. Partain v. State, 139 Ga.App. 325, 228 S.E.2d 292 (1976); Lush v. State, 168 Ga.App. 740, 743(6), 310 S.E.2d 287 (1983). Moreover, contrary to Bright's contention, we conclude tha......
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Rogers v. State, 60211
...so small they could not be seen, used or weighed." We are urged "to reconsider this problem" that was settled in Partain v. State, 139 Ga.App. 325(5), 228 S.E.2d 292, affd. 238 Ga. 207, 232 S.E.2d 46. Therein we held: "Regardless of the amount, however minute, if it is enough for the office......
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State v. Robinson, 1726
...See Robbs v. Commonwealth, 211 Va. 153, 176 S.E.2d 429 (1970); State v. Dodd, 28 Wis.2d 643, 137 N.W.2d 465 (1965); Partain v. State, 139 Ga.App. 325, 228 S.E.2d 292 (1976), aff'd, 238 Ga. 207, 232 S.E.2d 46 (1977); State v. Thomas, 20 N.C.App. 255, 201 S.E.2d 201 (1973), cert. denied, 284 ......
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Fulton County v. Collum Properties, Inc., A89A1690
...properly before this court for review. Roberts v. Cotton States Mut. Ins. Co., 186 Ga.App. 371, 373, 367 S.E.2d 272; Partain v. State, 139 Ga.App. 325(6), 228 S.E.2d 292. Further, " '[a]n enumeration of error cannot be enlarged at the appellate level by statements in the briefs of counsel t......
-
Bright v. State, S94P1617
...amount of cocaine, he may not be convicted of the possession thereof. The law in this state is to the contrary. Partain v. State, 139 Ga.App. 325, 228 S.E.2d 292 (1976); Lush v. State, 168 Ga.App. 740, 743(6), 310 S.E.2d 287 (1983). Moreover, contrary to Bright's contention, we conclude tha......
-
Rogers v. State, 60211
...so small they could not be seen, used or weighed." We are urged "to reconsider this problem" that was settled in Partain v. State, 139 Ga.App. 325(5), 228 S.E.2d 292, affd. 238 Ga. 207, 232 S.E.2d 46. Therein we held: "Regardless of the amount, however minute, if it is enough for the office......
-
State v. Robinson, 1726
...See Robbs v. Commonwealth, 211 Va. 153, 176 S.E.2d 429 (1970); State v. Dodd, 28 Wis.2d 643, 137 N.W.2d 465 (1965); Partain v. State, 139 Ga.App. 325, 228 S.E.2d 292 (1976), aff'd, 238 Ga. 207, 232 S.E.2d 46 (1977); State v. Thomas, 20 N.C.App. 255, 201 S.E.2d 201 (1973), cert. denied, 284 ......
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Fulton County v. Collum Properties, Inc., A89A1690
...properly before this court for review. Roberts v. Cotton States Mut. Ins. Co., 186 Ga.App. 371, 373, 367 S.E.2d 272; Partain v. State, 139 Ga.App. 325(6), 228 S.E.2d 292. Further, " '[a]n enumeration of error cannot be enlarged at the appellate level by statements in the briefs of counsel t......