Pass v. State

• Decision Date: 02 June 1971
• Docket Number: No. 26508,26508
• Citation: 182 S.E.2d 779,227 Ga. 730
• Court: Georgia Supreme Court
• Parties: Edward Dean PASS v. The STATE.

Page 779

182 S.E.2d 779

227 Ga. 730

Edward Dean PASS v. The STATE.

No. 26508.

Supreme Court of Georgia.

June 2, 1971.

Rehearings Denied June 17 and July 9, 1971.

Victoria D. Little, J. W. Moulton, Decatur, for appellant.

Richard Bell, Dist. Atty., Eugene Highsmith, Decatur, Arthur K. Bolton, Atty. Gen., Harold N. Hill, Jr., Executive Asst. Atty. Gen., Courtney Wilder Stanton, Mathew Robins, Asst. Attys. Gen., Atlanta, for appellee.

Syllabus Opinion by the Court

UNDERCOFLER, Justice.

Edward Dean Pass was convicted of the murders of John P. Barnes and Nina F. Barnes and sentenced to death. He appeals to this court. Held:

1. We have carefully reviewed the evidence and find it sufficient to support the verdict. Enumerations of error numbers 1 and 25 are, therefore, without merit.

2. Enumeration of error number 2 contends that the trial court erred in refusing to accept appellant's plea of guilty to Count 2 of Indictment Number 11102, which charged the appellant with burglary of the house of John P. Barnes on November 28, 1969.

'A plea of guilty is but a confession of guilt in open court and a waiver of trial. Like a confession out of court, it ought to be scanned with care and received with caution. The judge is not bound to receive such a plea at all, and in capital cases frequently declines to do so. * * * The law favors a trial on the merits. Gauldin v. Crawford, 30 Ga. 674(5). It does not encourage confessions of guilt, either in or out of court. * * *' Strickland v. State, 199 Ga. 792, 35 S.E.2d 463. This enumeration of error is without merit.

3. Enumeration of error number 3 contends that since the trial court erroneously refused the appellant's plea of guilty to Count 2 of the indictment charging him with burglary of the home of John P. Barnes, it was error to allow the defendant to be prosecuted on Counts 1 and 2 of Indictment Number 11101 charging him with the murders of John P. Barnes and Nina F. Barnes respectively. The appellant bases this contention on Code Ann. § 26-506(b)(c) which provides under multiple prosecutions for the same conduct: '(b) If the several crimes arising from the same conduct are known to the proper prosecuting officer at the time of commencing the prosecution and are within the jurisdiction of a single court, they must be prosecuted in a single prosecution except as provided in subsection (c). (c) When two or more crimes are charged as required by subsection (b), the court in the interest of justice may order that one or more of such charges be tried separately.' Ga.L.1968, pp. 1249, 1267.

This court construed these provisions of the 1968 Act in Henderson v. State, 227 Ga. 68, 76, 179 S.E.2d 76, 83 where it said: 'Formerly, the judge had a discretion to order separate trials, but his discretion was abused if the separate counts involved different species of felonies or crimes of a different nature requiring different kinds of evidence to prove guilt. This test no longer need be applied. The only test under the new Criminal Code is whether the interests of justice will be served by ordering separate trials. The judge may order the charges tried separately but he is not required to do so if in his opinion the interests of justice will not be served thereby. We think the trial court in this case was justified under the facts of the case in concluding that the interests of justice would not be served by ordering separate trials.'

Furthermore, the fact that the trial judge would not accept the guilty plea of the appellant for burglary of the house of John P. Barnes had no bearing at all on whether or not the appellant could be tried for the murders of John P. Barnes and Nina F. Barnes.

This enumeration of error is without merit.

4. Enumeration of error number 4 contends that the trial court erred in sustaining the State's objection to the following question directed to a police officer by counsel for the appellant: 'Now, then, sir, you state in this affidavit that on December 2, 1969, a responsible citizen informed you of certain facts. Was that responsible citizen named Eddie Anderson?'

The district attorney objected to the question and stated that the lives of the informants had been threatened and requested the court not to require the witness to name them.

In Morgan v. State, 211 Ga. 172, 177, 84 S.E.2d 365, 369, this court held: 'Code, § 38-1102 provides that official persons shall not be called upon to disclose State matters of which the policy of the State requires concealment. In Anderson v. State, 72 Ga.App. 487(4), 34 S.E.2d 110, it was held that ordinarily one who acts in the capacity of a peace officer will not be required to disclose the name of his informant concerning the crime for which the accused is being tried, and that such rule rests upon sound public policy. There was no error in the court's refusal to require the witness to disclose the name of the person who gave the information.' See also Scull v. State, 122 Ga.App. 696, 700, 178 S.E.2d 720.

This enumeration of error is without merit.

5. Enumeration of error number 5 contends that the trial court erred in denying the appellant's motion to suppress evidence because the issuing judge was not authorized to sign the search warrant. The appellant contends that two questions are raised by this enumeration of error: (1) Whether a judge can issue a warrant for a search in a county other than his own, and (2) Is a 'pro hac' judge of the Municipal Court of Atlanta qualified to issue a search warrant?

(a) The record shows that the homicides were committed in the City of Atlanta in DeKalb County. The search warrant was issued by a pro hac judge of the Municipal Court of Atlanta while the judge was in Fulton County. We judicially know that the City of Atlanta is in the counties of Fulton and DeKalb. We hold, therefore, that a judge of the Municipal Court of Atlanta has authority to issue a search warrant for that portion of the City of Atlanta located in DeKalb County.

(b) In 1950 the charter of the City of Atlanta was amended and authorized the mayor of the city to appoint for the recorders' court a recorder pro hac vice 'to properly expedite the business thereof, and while so acting such persons shall have all the powers of a Recorder of said court.' Ga.L.1950, p. 2267. In 1952 the name of the Recorders' Court was changed to the Municipal Court of Atlanta and provision was made that the recorders would be the judges of said court. 'The judges and associate judges shall have the jurisdiction, powers and duties as now prescribed by the law applicable to recorders and deputy recorders respectively.' Ga.L.1952, p. 2676.

Code Ann. § 69-705 provides that 'All police court recorders and judges of all recorders' courts in this State shall have and are hereby given the same powers and authorities as ex-pfficio justices of the peace in the matter of and pertaining to criminal cases of whatever nature in the several courts of this State.' Ga.L.1935, p. 458. Code § 27-401 provides that a justice of the peace may hold a court of inquiry. Code Ann. § 27-303 provides that a search warrant may be issued by a judicial officer authorized to hold a court of inquiry. Ga.L.1966, pp. 567, 568. See Hall v. State, 113 Ga.App. 587, 149 S.E.2d 175.

It follows that a judge pro hac vice of the Municipal Court of Atlanta is authorized to issue search warrants.

This enumeration of error is without merit.

6. Enumeration of error number 6 contends that the trial court erred in overruling the appellant's motion to suppress tangible evidence. The appellant contends that the evidence was obtained as a result of an illegal search 'because the search was general, because the warrant was issued without authority, because the affidavit supporting the warrant had not a measure of truth, and because the indications did not set forth a probable cause of the issuance of a warrant.'

(a) We have held in the preceding division of this opinion that the judge pro hac vice of the Municipal Court of Atlanta had authority to issue the search warrant.

(b) The record shows that the evidence sought to be suppressed was obtained as a result of the search conducted under authority of the search warrant. The affidavit of the officer seeking the search warrant specifically described the place and automobile to be searched and the items sought to be recovered. The information contained in the search warrant was not within the officer's personal knowledge but was based on information furnished to him by an informant. The affidavit also shows that the informant was a responsible citizen who stated that on Friday, November 28, 1969, at 11:45 a.m., the appellant had asked someone how it would feel to kill somebody and if it would bother him; that the appellant said he had killed two people who had walked in on him while he was burglarizing a house; that the appellant had in his possession a gold, heart-shaped locket containing a small color photograph of a white woman of young appearance with dark brownish hair; and that the officer and others made an independent investigation and corroborated the facts and circumstances given them by the informant. They also discovered that the appellant had a reputation as a burglar. The affidavit showed that the informant had given them reliable information in the past.

The affiant here showed ample facts to authorize the issuing magistrate to conclude that there was probable cause to believe that a crime of the nature set forth in the affidavits had been committed and that evidence of that crime would be produced by a search of the premises and automobile described in the affidavits. The fact that much of the affiant's information was derived from an informant would not vitiate the warrant. Strauss v. Stynchcombe, 224 Ga. 859(2), 165 S.E.2d 302; Campbell v. State, 226 Ga. 883(1), 178 S.E.2d 257.

(c) The fact that the police officers seized items not listed in the warrant did not render the search a...