The defendant appeals from his conviction of possession of a sawed-off shotgun in violation of Code Ann. § 26-9911a (Ga. L. 1968, pp. 983, 984). Jurisdiction is in this court by reason of an attack on the constitutionality of a statute.
The evidence showed the following circumstances of thе defendant’s arrest. A state trooper stopped at the defendant’s automobile, which was parked alongside Interstate Highway 75, to offer assistance if needed. When the defendant complied with the trooper’s request to get out of the vehicle, the odor of alcohol was detected on the defendant’s breath. The defendant told the trooper that he was bound for Florida, despite the fact that his automobile was adjacent to the northbound lanes and contained no luggage or clothing in the passenger сompartment. The defendant voluntarily consented to open the trunk, wherein were found several sets of automobile rims and tires and a current Georgia automobile license tag, which was determined by a radio check to be stolen. The trooper learnеd by questioning the defendant that he was a parolee from a federal prison under a bank-robbery sentence. A blood-alcohol test (indicating .03 percent alcohol) was made at the jail, and the defendant was arrested on charges of driving under the influence and of possession of a stolen license tag. The defendant’s automobile was locked and left alongside 1-75 for less than one half hour, after which time, in an on-the-scene inventory search prior to towing the vehicle in, the sheriff observed and seized a shotgun which wаs partially protruding from underneath the right *623 (passenger’s) side of the front seat.
1. The appellant contends that the "search” of his automobile was invalid because it was conducted outside the accused’s presence. In the present case, as in
Lee v. State,
Nor was the seizure of the evidence invalid because the sheriff made no written inventory of the articles seized, as required by Code Ann. § 27-302 (Ga. L. 1966, pp. 567, 568), and, the appellant contends, merely searched for items of evidentiary, not monetary, value. The failure to furnish appellant an inventory is a ministerial act ánd does not affect the validity of the search and seizure.
Carter v. State,
2. Error is enumerated on the admission in evidence, over objection, of testimony of the statе’s witness, the arresting officer, that he had test-fired the subject sawed-off shotgun outside the courtroom during the lunch recess of the trial and found it to be operative.
*624
The appellant concedes that, within the discretion of the trial judge, experiments may be conductеd on evidence either in court
(Hudson v. State,
"It is well settled that where the results of a chemicаl or other technical analysis of an item are sought to be introduced into evidence, it must be shown with reasonable certainty that there has been no alteration or substitution of the item. And, in such a case the test of reasonable certainty is not met where therе is missing a vital link in the chain of possession of the item. [Cits.] Factors to be considered in making a determination of whether physical objects connected with commission of a crime are substantially in the same condition as when the crime was committed, so that they cаn be admitted into evidence, or [are?] the nature of the article, circumstances surrounding its preservation and custody, and the likelihood of intermeddlers tempering [sic] with it. If upon consideration of such factors the trial judge is satisfied that in reasonable probability, thе article has not been changed in important respects, he may permit its introduction into evidence. Gallego v. United States, 276 F2d 914 (9th Cir. 1960).”
Epps v. State,
There was likewise no proof that the jury or any jurors may have "seen or heard the result of the experiment,” but, even if such was the case, it is difficult to see any error therein, inasmuch as the judge in his discretion could have allowed the experiment to have been conducted in the jury’s presence. The whole purpose of the experiment was to make known to the jury the result thereof. It is interesting to note that, although the appellant attacks the constitutionality of Code Ann. § 26-9915a (Ga. L. 1968, pp. 983, 986) on the ground that it shifts to the defendant the burden of proof of any exception, excuse, proviso or exemption of the law, 1 including that the weapon is inoperative, as provided in Code Ann. § 26-9914a (c) (Ga. L. 1968, pp. 983,985), yet he would prevent the state from carrying that very burden by prоving the weapon to have been in fact operative.
This enumerated error is without merit.
3. The appellant contends that the state failed to carry its burden of proving the dimensions of the weapon which the Code (§ 26-9913a (a, 2); Ga. L. 1968, pp. 983, 984; 1974, p. 449) specifies to constitute a "sawed-off shotgun,” i. e., "having one or more barrels less than 18 inches in length or ... an overall length of less than 26 inches.” Although there was no testimony as to the dimensions of the weapon, the weapon itself was introduced in evidence, it went out with the jury to the jury room for their deliberations, and the trial judge charged the provisions of Code Ann. § 26-9913a (a, 2), supra. It is argued that the jury’s implicit finding that the weapon was the requisite length must have been based upon either their inaccurate sensory perceptions or an unauthorized experiment on the evidence.
The state рrima facie carried its burden of proof by introducing in evidence the weapon itself, which was the
*626
best evidence of its size. "All properly introduced documentary and demonstrative evidence will be taken into the jury room when the jury retires. This includes photographs, guns and other objects . . . The jury may examine and evaluate objects taken to the jury room, so long as their examinations and tests do not have the effect of introducing new evidence. Thus they may use a magnifying glass to examine evidence. The jury may smell and taste the contents of a jug to determine if it contained whiskey.” 11 EGL Evidence, § 91, citing, inter alia,
Moss v. State,
The burden is on the appellant to show harm as well as error.
Chenault v. State,
This enumerated error is without merit.
4. Thе evidence supports the finding that the defendant was in possession of the sawed-off shotgun at the time of his arrest. "The contents of an automobile are presumed to be those of one who operates and is in charge of it, and this applies particularly where the operator is also the owner, as here. [Cit.]”
Williams v. State,
5. (a) The Georgia Firearms and Weapons Act, Code Ann. §§ 26-9910a through 26-9916a (Ga. L. 1968, p. 983 et seq.) is not, as the appellant contends, in violation of Art. I, Sec. I, Par. V of the Georgia Constitution of 1976 (Code Ann. § 2-105), which provides, "The right of the people to keep and bear arms, shall not be infringed, but the General Assembly shall have power to prescribe the manner in which arms may be borne.”
In
Strickland v. State,
In referring to Nunn v. State, supra, the court in Strickland, at p. 8, held that "[t]he opinion contains some broad language used in discussion; but evidently it was *628 never intended to hold that men, women, and children had some inherent right to keep and carry arms or weapons of every description, which could not be infringed by the legislature, unless as a result of the constitutionаl provision under consideration.” (Emphasis supplied.)
The fact that the present Constitution omitted the phrase, "A well-regulated militia being necessary to the security of a free State,” which appeared in earlier Constitutions preceding the provision of the right to keep and bear arms, does not affect the constitutionality of the Act in question, because the Act can be sustained as a legitimate exercise of the police power of the state, as indicated hereinabove. It was not arbitrary or unreasоnable to prohibit the keeping and carrying of sawed-off shotguns, which are of a size such as can easily be concealed and which are adapted to and commonly used for criminal purposes. The Act does not prohibit the bearing of
all
arms. Even the
Nunn
case,
(b) The appellant contends that the Georgia Firearms and Weapons Act is in violation of the due process clauses of the State and Federal Constitutions, in that Code Ann. § 26-9915a (Ga. L. 1968, pр. 983, 986) puts upon the defendant the burden of proof of any "exception, excuse, proviso or exemption” contained in the Act.
"This court will not pass upon the constitutionality of a statute where a determination of such question is not essential to a dispositiоn of the case.”
Waller v. Conner,
Judgment affirmed.