State v. McNutt, 55595
| Decision Date | 22 June 1978 |
| Docket Number | No. 55595,55595 |
| Citation | 146 Ga.App. 369,246 S.E.2d 402 |
| Parties | The STATE v. McNUTT. |
| Court | Georgia Court of Appeals |
Hinson McAuliffe, Sol., Richard E. Stark, Asst. Sol., Atlanta, for appellant.
Wehunt & Eason, William A. Wehunt, Richard B. Eason, Jr., Atlanta, for appellee.
This case involves an accusation of an offense of misdemeanor in that the defendant did "commit an act of public indecency . . . in a public place, . . . Climax Book Store," in making a lewd exposure of his sexual organs. The defendant moved to quash the accusation contending he had "leased" the facilities as a private theatre to review films which had been leased for his own private viewing, the said theatre having been closed to the public and thus did not constitute a public place. He contends the officer, presumably who had arrested him, had invaded his privacy and had conducted unlawful eavesdropping and surveillance in violation of the Georgia law, the Constitution of the State of Georgia and the Fourth Amendment of the United States Constitution.
A hearing was held thereon and the officer who was the essential witness who allegedly had been subpoenaed, was not present. All parties involved, the trial court, counsel for defendant and the state, seemingly have treated the matter as one to suppress the evidence. When the subpoenaed officer witness failed to appear, the court orally ordered the case dismissed; but then apparently issued only a written order suppressing the evidence, that is, "the same is hereby Granted." (Emphasis supplied.) It is quite apparent the trial court meant the motion has been "granted." The state appeals. Held:
Treating the motion as one to suppress the evidence as the court has done in this case under Code Ann. § 27-313 (Ga.L.1966, pp. 567, 571), the burden of proving that the "search and seizure were lawful shall be on the State." See also State v. Mabrey, 140 Ga.App. 577, 579, 231 S.E.2d 461; Bland v. State, 141 Ga.App. 858, 234 S.E.2d 692. The record and transcript fails to disclose whether the state made a motion for continuance upon discovery of the absence of the subpoenaed state's witness. Neither does the record and transcript disclose that the state's witness was properly subpoenaed. Only the assistant solicitor's statements, "I understand he was subpoenaed, . . . I would rather, . . . have the officer attached . . . (m)y understanding is that he did receive the subpoena" appear in...
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Pierce v. State, 69461
...evidence must be suppressed if the State does not meet its burden of proof at the pre-trial hearing. See generally State v. McNutt, 146 Ga.App. 369, 246 S.E.2d 402 (1978). Under State v. Johnston, supra, the proper procedural device by which to obtain a pre-trial ruling on the admissibility......
- Lentz v. State Personnel Bd., 55592
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State v. Ross
...case in which the state failed to produce any evidence in support of the validity of the search and seizure. Compare State v. McNutt, 146 Ga.App. 369, 246 S.E.2d 402 (1978). Rather, we find that the state was effectively denied the opportunity to meet its burden of proof on the motion to su......