Thomas v. State, 43816

• Decision Date: 03 September 1968
• Docket Number: No. 43816,No. 2,43816,2
• Parties: L. M. THOMAS, Jr. v. The STATE
• Court: Georgia Court of Appeals

Page 850

163 S.E.2d 850

118 Ga.App. 359

L. M. THOMAS, Jr. v. The STATE.

No. 43816.

Court of Appeals of Georgia, Division No. 2.

Sept. 3, 1968.

Rehearing Denied Sept. 18, 1968.

Certiorari Denied Nov. 7, 1968.

Syllabus by the Court

When a person was lawfully arrested for suspicion of murder at a hospital where a wounded person died, a search without a warrant at the scene of the suspected crime, the residence of the suspect, specifically directed to the means and instrumentalities by which the crime was committed, was one which the situation reasonably demanded and was not unlawful.

The defendant appeals from his conviction of voluntary manslaughter for which he received a sentence of 8 years.

Frank B. Hester, Richard M. Hester, Atlanta, for appellant.

Lewis R. Slaton, Sol. Gen., J. Walter LeCraw, J. Robert Sparks, Tony H. Hight, Atlanta, for appellee.

HALL, Judge.

1. The defendant enumerates as error the overruling and denying of his challenge to qualifications of panels, challenge to polls and array and his objections to excusing of jurors opposed to capital punishment. On June 3, 1968, the Supreme Court of the United States held that a death sentence cannot constitutionally be executed if imposed by a jury which by law is given broad discretion to choose between life imprisonment and capital punishment, when all persons on the panel who are opposed to capital punishment or have conscientious scruples against imposing the death penalty have been removed as disqualified for that reason alone. Witherspoon v. State of Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776. (Decided June 3, 1968). However, on the same date the court held in another opinion that this principle had no application in a case where the jury did not impose the death penalty. Bumper v. State of North Carolina, 391 U.S. 543, 88 S.Ct. 1788, 20 L.Ed.2d 797. (Decided June 3, 1968). The trial court did not err in the above rulings.

2. The defendant enumerates as error the overruling of his motion to suppress evidence made in writing after the State had rested its case. The ground of the motion was that the defendant's residence had been illegally searched by the police without a warrant, evidence seized and photographs made of the premises in violation of the defendant's constitutional rights, and that prior to the testimony of a detective the defendant had no knowledge whatever of the illegality of the search and seizure.

The Georgia Search and Seizure Law of 1966 does not expressly provide the time when the motion must be made. However, this court has held that the motion must be timely made or else it is waived. Gilmore v. State, 117 Ga.App. 67, 159 S.E.2d 474; Brannen v. State, 117 Ga.App. 69, 159 S.E.2d 476; Watts v. State, 117 Ga.App. 558, 161 S.E.2d 516. The State contends that it must always be made prior to trial. We disagree.

The Georgia law, while not identical, is similar to Rule 41(e) of the Federal Rules of Criminal Procedure. That rule expressly provides that the motion shall be made before trial or hearing unless opportunity therefor did not exist or the defendant was not aware of the grounds for the motion. 'At least, the motion must be made before the testimony is begun if defendant knows of the unlawful seizure and has had an opportunity to present the question in advance of trial.' 11 Cyclopedia of Federal Procedure, 3rd ed. 591, § 44.49. The rule is merely a restatement of previous federal decisions. Agnello v. United States, 269 U.S. 20, 46 S.Ct. 4, 70 L.Ed. 145, 51 A.L.R. 409. Its purpose is to avoid the interruption of the trial for the purpose of investigating the collateral issue of the legality of the means by which the evidence was obtained. 50 A.L.R.2d 583. However, it is not 'a narrow, finicky procedural requirement' in that 'the court in its discretion may entertain the motion at the trial or hearing.' Jones v. United States, 362 U.S. 257, 264, 80 S.Ct. 725, 732, 4 L.Ed.2d 697, 78 A.L.R.2d 233.

In our opinion the above principles are applicable to the Georgia statute.

Whether or not the defendant's motion was timely, however, the evidence was not subject to suppression. It appears from the record that after the deceased was wounded the defendant and his son drove her to the office of a physician and then to the hospital. When the deceased died shortly after arrival at the hospital the attending physician directed a hospital employee to call the police 'because it looked like it should be a coroner's case.' The officer patroling in the area of the deceased's residence received a police radio call signaling that a person was injured at the residence. This was followed by a radio call that the victim was at Piedmont Hospital. A police detective received a radio call to go to the hospital. The patrol officer and detectives went to the hospital. One of the detectives arrested the defendant and told him he was suspected of murder. The patrol officer then went to the residence, found the door open, went in the house and found no one there, and went back to his car and waited for the detectives and for children of the deceased whom he stated he had been told were on their way. This officer stated that the deceased's son had requested at the hospital that he go back to the house and prevent his brothers and sisters seeing the room his mother had been in; the son denied this. Three other officers went from the hospital to the house, entered, took photographs, and took things from the house that the State used as evidence at the trial. The officer directing the investigation at the house testified that when he left the hospital the defendant was in the custody of the arresting officer, and that his authority for entering the house was that he had heard the call on the police radio to the patrol officer signaling a person was injured there, and the following call that the victim had been at the hospital; that at the hospital he met the patrol officer, who left the hospital stating he was going to the residence, that he didn't know whether there was someone else injured, or who had called or whether the call had been placed from the home.

The issue is whether in these circumstances the search...