Tolbert v. State

• Decision Date: 09 April 1968
• Docket Number: No. 24554,24554
• Citation: 161 S.E.2d 279,224 Ga. 291
• Parties: Charles Oscar TOLBERT v. The STATE.
• Court: Georgia Supreme Court

Page 279

161 S.E.2d 279

224 Ga. 291

Charles Oscar TOLBERT v.The STATE.

No. 24554.

Supreme Court of Georgia.

April 9, 1968.

Rehearing Denied April 22, 1968.

Syllabus by the Court

1.The verdict was amply supported by the evidence.

2.The voluntary consent of the defendant's father to the search of the minor defendant's automobile, which was parked on the premises of his father, where the defendant lived, was sufficient to authorize the search.

John N. Crudup, E. C. Brannon, Gainesville, for appellant.

Arthur K. Bolton, Atty. Gen., Marion O. Gordon, Mathew Robins, Asst. Attys.Gen., Atlanta, for appellee.

MOBLEY, Justice.

Charles Oscar Tolbert was convicted of the offense of rape, and sentenced to life imprisonment.The questions made on his appeal are: (1) the sufficiency of the evidence to support the verdict; and (2) the legality of the admission of testimony of the Sheriff of Lumpkin County relative to the search made by him of the automobile of the defendant and the finding of a marked cough drop box therein, and the introduction of the box in evidence, over the objection that the search and seizure were accomplished under a void search warrant.

1.The verdict of guilty was amply supported by the evidence.The victim testified that the crime of rape was committed on her on the night of February 14, 1967, in Lumpkin County.The individual perpetrating the crime was unknown to her, but she and her escort both identified the defendant as the perpetrator of the crime when he was placed in a line-up the next day.

The testimony showed that: On the night the crime was committed, the victim and her escort, both students at North Georgia College, were in a parked automobile on Crown Mountain, when the defendant drove his automobile up behind them; then moved it and parked it on their left; and after sitting in it a few minutes, moved it and parked it to their right.Thereafter the defendant got out of his automobile, and came to the automobile of the victim's escort and placed a blunt instrument (later identified as a pistol) against the window.When the victim's escort rolled the window down, the defendant commanded them to get out.The young man got out, and the victim started to get out also, but the defendant told her to get back in the automobile.He then directed the young man to go behind the automobile and they had a conversation in which the defendant stated that he wanted to talk with the victim, and directed the young man to get in the defendant's automobile.While the young man sat in the automobile of the defendanthe placed a cough drop box with his name written on it underneath the seat.

The victim testified that the defendant committed the crime of rape on her, and that she did not resist him because of her fear of the pistol with which he menaced her.When she and her escort returned to the school she went to the school infirmary.The nurse there testified that the victim was dazed and nervous, that the victim told her what had happened, and from her examination of the victim it was her opinion that the victim had had sexual intercourse.The doctor confirmed this opinion, and stated that the victim had related to him what had happened to her.A search of the defendant's automobile disclosed the cough drop box placed underneath the seat by the victim's escort, with his name written thereon.

2.Counsel for the defendant objected to any and all evidence of the results of the search of the automobile belonging to the defendant, on the grounds that the search was unreasonable and illegal, based on a void search warrant, and that the admission of any evidence obtained as a result of this search constituted a violation of the rights of the defendant under the Fourth and Fourteenth Amendments of the Constitution of the United States.

In the preliminary hearing, out of the presence of the jury, on the question of the admissibility of this evidence, the Sheriff of Lumpkin County testified: After receiving the complaint in regard to the rape he obtained a search warrant, and went to the home of the defendant's father, Clutch Tolbert.When he talked with Mr. Tolbert he did not show him the search warrant.He told him the information he had and told him that he wanted to look in the automobile, and Mr. Tolbert said, 'Well, I do too.Just help yourself, and we'll look at it.'He found the cough drop box with the writing on it underneath the seat,...