Westley v. State
| Decision Date | 08 September 1977 |
| Docket Number | No. 54188,No. 3,54188,3 |
| Citation | 238 S.E.2d 701,143 Ga.App. 344 |
| Parties | Ronnie WESTLEY v. The STATE |
| Court | Georgia Court of Appeals |
George W. Woodall, Albany, for appellant.
William S. Lee, Dist. Atty., Loring A. Gray, Jr., Asst. Dist. Atty., Albany, for appellee.
Appellant Westley was convicted of a violation of the Georgia Controlled Substances Act, possession of marijuana.
1. Appellant attacks the validity of the search warrant under which the evidence was seized on the ground that the issuing officer, Dougherty County Associate Judge William T. Jones, issued the warrant some thirteen days before he received a formal appointment and oath of office.
The uncontroverted evidence shows that, at the time of issuance of the warrant in question, Judge Jones had served continuously in Dougherty County as a Judge Pro Hac Vice, acting judge, or associate judge since June 1, 1965. Due to an ambiguity in the Act creating the office of Judge Pro Hac Vice, the Act was amended by Ga.L.1976, pp. 3176, 3180, which struck that portion of the original Act creating the office of Judge Pro Hac Vice and substituted a new section authorizing the appointment of Associate Judges. Unaware that the new law required a formal appointment, Judge Jones was informed by the Judge of the State Court that his title had simply been changed from Judge Pro Hac Vice to Associate Judge. At all times subsequent to the enactment of the law creating the office of Associate Judge, Judge Jones physically occupied the office of Associate Judge, held himself out to the public as Associate Judge, and performed the duties of that office under color of appointment by the Judge of the State Court. The Albany Bar Association recognized him as an Associate Judge. It is also significant that, upon being apprised of the requirement of a formal appointment, Judge Jones was duly appointed and officially sworn to the office of Associate Judge of the State Court of Dougherty County.
The doctrine of the validity of acts of de facto officers is so well settled that it is embodied in Code § 89-101, et seq. (as amended, Ga.L.1976, p. 464). The public convenience controls, for, as the court stated in Smith & Bondurant v. Meador, 74 Ga. 416 (1884): "(I)t is better for society that the act de facto stand than that the business of society, the title to property, be all wrecked, because parties did not know that the term of office of the public official expired the day before." P. 419. See Mitchell v. Pittman, 184 Ga. 877, 885, 194 S.E. 369 (1937). Similarly, Code § 89-310, and cases interpreting that section, state that the official acts of an officer are nonetheless valid for his omission to take and file oath. Whether Judge Jones is viewed as having "held over" from a previous office, or having simply failed to take an oath of the new office, the law is clear that his acts pursuant to that office are valid. Usry v. Hadden, 65 Ga.App. 227, 15 S.E.2d 629 (1941).
Appellant's enumeration of error concerning the validity of the search warrant is therefore without merit.
2. Appellant next asserts that the trial court erred in its refusal to exclude the testimony of the arresting officer that, when the defendant was discovered in the northwest bedroom of the apartment he was immediately asked, "Do you live here?" and the defendant answered in the affirmative. Appellant objected to the testimony on the ground that no Miranda warnings had been given prior to the asking of the question.
We find no error. Under similar facts, the court in Jones v. State, 127 Ga.App. 137, 193 S.E.2d 38 (1972), held that the investigating officer's question, "Where do you stay?", directed to the defendant, was a mere threshold inquiry, and a reasonable one. See, also, Boorstine v. State, 126 Ga.App. 90(1), 190 S.E.2d 83 (1972). Similarly, in Shy v. State, 234 Ga. 816, 218 S.E.2d 599 (1975), wherein a defendant in custody was asked, prior to being given Miranda warnings, what had happened, he replied: " 'I caught my wife and that son of a bitch and I shot him'." Shy, supra, at p. 817, 218 S.E.2d at p. 602. The court observed that the Miranda warnings are not required in " 'general on-the-scene investigation'," and that "(t)he police on the scene of a crime are likely to detain temporarily anyone who tries to leave before a preliminary investigation." Shy, supra, at p. 820, 218 S.E.2d at p. 603. See, Allen v. United States, 129 U.S.App.D.C. 61, 390 F.2d 476 (1968); Arnold v. United States, 382 F.2d 4 (9th Cir. 1967). The Supreme Court in the Shy case concluded:
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