Reid v. State, 48461
| Decision Date | 17 September 1973 |
| Docket Number | No. 3,No. 48461,48461,3 |
| Citation | 129 Ga.App. 660,200 S.E.2d 456 |
| Parties | Mozelle REID v. The STATE |
| Court | Georgia Court of Appeals |
Millard C. Farmer, Jr., Newnan, for appellant.
Eldridge W. Fleming, Dist. Atty., Hogansville, William F. Lee, Jr., Newnan, for appellee.
Syllabus Opinion by the Court
Mozelle Reid was convicted of possessing more than a quart of liquor in a dry county, (Code Ann. § 58-1077), and she appeals from the judgment and sentence. Before the jury was selected defendant's counsel sought to interrogate each of the jurors concerning his bias, racial or otherwise, his prejudices, etc., as provided in Code Ann. § 59-705, as amended, and the request was denied on the ground that this Code section does not apply to misdemeanor cases. Defendant filed a motion to suppress as evidence liquor confiscated upon a search of her place of business under a search warrant, on the ground that the warrant was invalid. There are enumerations of error as to these and other matters. Held:
1. For the reasons stated in Reid v. State, 129 Ga.App. 657, 200 S.E.2d 454, ante, a new trial is granted because of error in denying defendant's counsel the right to interrogate the jurors as provided in Code § 59-705, as amended.
2. (a) At the hearing on the motion to suppress the affidavit by the sheriff for procuring a search warrant authorizing a search of defendant's premises, and the search warrant issued thereon, the affidavit and warrant were produced and admitted. It appears that the affidavit was prepared by the district attorney and was sufficient, both as to form and content, to authorize a finding of probable cause and the issuance of a warrant.
However, the justice of the peace who issued it testified that this was the first search warrant that he had handled, that he was new at it, and that he was unfamiliar with the process of obtaining and issuing search warrants. The sheriff was sworn and signed the affidavit in his presence. He attested it and proceeded to issue the warrant. He did read the warrant, but testified that As for making any decision from reading the affidavit, he had not done so. The only thing he had done was to make sure that the sheriff was sworn and signed the affidavit. His only function had been 'just signing the warrant.'
This testimony by the magistrate demonstrates beyond any peradventure that there was a failure on his part to make a judicial determination of the existence of probable cause, which is a sine qua non to the issuance of the warrant. Johnson v. State, 111 Ga.App. 298, 141 S.E.2d 574; Burns v. State, 119 Ga.App. 678, 168 S.E.2d 786; Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723. This is not a mere technical irregularity within the meaning of Code Ann. § 27-312 (Ga.L.1966, pp. 567, 571).
(b) While denial of the motion to suppress was error, for the reasons stated, it was not reversible error until and unless evidence seized during an illegal search was tendered and admitted against the defendant, though properly and timely objected to. Bass v. State, 117 Ga.App. 89, 90, 159 S.E.2d 299.
Code Ann. § 27-313 provides: (Emphasis supplied.)
Prior to the adoption of this statute in 1966 a motion to suppress was unknown in the law of this state, and there is now no authority for the motion save under the statute. Green v. State, 110 Ga.App. 346, 138 S.E.2d 589; Brannen v. State, 117 Ga.App. 69, 159 S.E.2d 476.
'Assuming, without deciding, that the overruling of the motion to suppress was error, it would be necessary to examine and consider the remainder of the transcript of evidence and proceedings in order to determine that this evidence was actually introduced before the jury, and unless it was introduced before the jury, the overruling of the motion to suppress was harmless, even if error.' Bass v. State, 117 Ga.App. 89, 90, 159 S.E.2d 299, supra. See also Cook v. State, 116 Ga.App. 304, 305, 157 S.E.2d 160.
The property seized and which appellant sought to have returned to her by a motion to suppress was never tendered in evidence. Consequently, even though we conclude that denial of the motion was error, it was, as to the trial of her case, harmless error.
(c) That a motion to suppress is inappropriate for excluding evidence not seized during an unlawful search from a trial is recognized in Norrell v. State, 116 Ga.App. 479, 488, 157 S.E.2d 784 where it was sought to use a motion to suppress to prevent the introduction of certain written and oral statements which the defendant and other witnesses had made, and the court asserted: 'These statements should have been made the basis of objections at the trial and not the basis of a pre-trial motion.' It was held in United States v. Dixon, 117 F.Supp. 925 (N.D.Cal.) that a written confession of the defendant is not property illegally seized, and thus is not subject to a motion to suppress. Neither is testimony property, and it is likewise not subject to the motion. Our Supreme Court has ruled on it: 'The testimony of eyewitnesses and victims of alleged crimes is outside the scope of a motion to suppress as contemplated under the provisions of Code Ann. § 27-313.' Baker v. State, 230 Ga. 741(1), 199 S.E.2d 252. Testimony is simply not within the scope of the motion as authorized by the statute.
Must a reversal result from the admission of the sheriff's testimony, unobjected to, that he went to the defendant's place of business, made a search and found more than two quarts of various kinds of liquors, Heard County being a dry county? We conclude that it does not.
When testimony is tendered relative to the property seized its admissibility is not tested by a motion under the provisions of § 27-313, but by a proper objection made when it is tendered at the trial. If an order has been granted it affords a basis or ground for making the objection to the testimony. If the motion was denied an objection may nevertheless be lodged on the ground that the testimony relates to property which was illegally seized during an unlawful search, and if the objection is overruled the ruling may become a proper subject of an enumeration of error on appeal. If on appeal it is decided that the motion to suppress should have been granted, it follows that the ruling on the objection to testimony is likely to be reversed also. But, as we have stated above, the admissibility of the property seized in an unlawful search and the admissibility of testimony are tested by different rules and procedure.
If a motion to suppress were held to apply to testimony because it is for some reason inadmissible, the court would be required to hold a pre-trial full scale trial for determining what portions of the testimony or other evidence may be inadmissible upon grounds directed to the court's attention, and even that would not preclude the objecting to it on yet other grounds when it is tendered...
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