*1 error, Even if the defendant Weeks. other than in someone other than ownership the fact of harmless as to which no other evidence by was established Weeks was made. of the court 3. for failure Error is enumerated record fails to show that the as but the charge requested, counsel or upon opposing was served requested charge comply and refused. The failure to tendered to the court (b) ruling on Code Ann. 70-207 and the lack § nothing for our request presents the trial court consideration. the trial court
4. At the close of the evidence charge At the conclusion of the counsel charged jury. procedure closing arguments. made their arguments charging jury prior contrary (b) the court "... Code states com- arguments instruct after are jury shall erred, counsel pleted.” Although by arguing the court waived the error.
Judgment affirmed. 1974.
William L. Slaughter, appellants. Owens, Littlejohn, Gower & F. Pugh, Pugh, Houser appellees. v. THE STATE. FLOURNOY Deen,
1. An arrest and search based
on information
informer,”
being given
a "reliable
no facts
conclusion,
this
and there
neither
cause for arrest nor any
is insufficient
to allow
the admission of contraband
discovered as
result of
such search.
Texas,
Aguilar
no law so will, him his must be deemed to have against and holds the defendant. person seized the Holtzendorf *2 (188 Ohio, 392 U. Terry 747 S. 125 Ga. Brooks 129 Ga. SC 892). to search is or the 3. Whether a consent facts of the depends upon result of duress individual upon the state to demonstrate that burden voluntarily given. in fact Schneckloth v. the Bustamonte, 2041, Brand Appellant stopped by police car was Flournoy’s
officers at about 1:00 a.m. after one of them received a unidentified source that she was on her way call interrogated home from purchasing whiskey. They then the trunk of the permission asked brought police which was refused. radio call another her under kept guard whose officers while others went off in search of a warrant. After some ten minutes so, the first officers not returned alone, frightened, upset, she opened, consented for the trunk to be and was found quarts to contain five then tax-paid liquor. She was station, arrest, police placed taken to the under officially bond, and allowed to make while the vehicle was seized for condemnation.
We with the that under these agree appellant circumstances and on the above cited there was no probable cause sufficient a search warrant sought, had one in fact and no reason been to believe absconding bring the act of so as to purview her within the of Carroll v. United 543, U. S. 69 LE 39 ALR and other like automobile cases. The search without a warrant cannot be nor was consent constitutionally justified voluntarily given.
The in overruling trial court erred the motion to suppress. J, Quillian, reversed. C. Evans
Clark, JJ., Hall, J., Eberhardt, J., P. P. Stolz, JJ, Wommack, Wommack,
McMaster & Robert W. D. E. McMaster, for appellant. Hutcheson, Solicitor, A.
Thomas Judge, dissenting. Stolz, case involves condemnation of an automobile which was found contain five quarts of whiskey a dry (Washington) The county. vehicle was owned by appellant and was being operated by her immediately prior to seizure by police Sandersville officers. night 26,1973,
On the May officer Bobby Whipple police Sandersville a telephone received call from a reliable cases, who had been used in other advising him that the defendant was on her way home *3 and had some liquor in her car. Whipple Officer (Reeves) another officer commenced a search for the a.m., defendant. Between 1:00 and 1:30 stopped the they Sandersville, defendant’s car on the street in asked for license, her driver’s and observed a box with empty some whiskey bottles in the back seat. The defendant was then asked if she open would the trunk of her car. She asked the officers if warrant, and, had a search they when told not, did they declined to open the trunk. The officers then advised the defendant would a they get warrant, and called a justice peace for that purpose. After the calling justice of the peace, officer Whipple car, returned to the defendant’s and within ten trunk, minutes she voluntarily opened the revealing the five quart-bottles of whiskey.
These present a vastly different situation from v. that presented in 129 Ga. App. cited in the majority opinion. In Kelly, the approached officer hand, the car pistol and asked for and received the keys car, whereupon, the seat, "spontaneously” reached under the removed a marijuana, containing bag it to paper and handed brown Kelly strongly denied The defendant the officer. had that the officers such, contended he had done found the brown searching bag the car. In this brandishing guns. of the officers’ no mention there is There quantity testimony positive, of undenied empty whiskey the rear seat of the in a box on bottles testimony of the defendant the car. There is defendant’s opened car. trunk herself, that she the of receipt Upon from their the information of at least authorize the would cause existed which question stop her. car and the defendant’s officers to totality Taking cir- into consideration including limited to the lateness cumstances, not telephone the reliable hour, conversation of the informer, empty whiskey in a box on the bottles officers were seat of the defendant’s rear authorized to detain while a search the defendant v. obtained. Anderson warrant was App. 286); App. State, 126 Ga. Johnson v. SE2d 900); App. 103, State, 129 v. Ga. SE2d Williams and cits. SE2d not Here, however, of the vehicle was of the search but was made under the acquiesced in the defendant when she allowed revealing whiskey. opened trunk, Free and to a search is a waiver produced thereby. Ferguson State, 218 Ga. the evidence (8) (126 Young State, 113 Ga. SE2d Raymond State, 129 498 (198 State, 129 Ga. Brand v. just say, law, court cannot as a matter "frightened because a defendant testifies she was upset,” coerced and intimidated or acted that she was involuntarily. themselves These matters address *4 judge. credibility, the trial In and have been resolved court not disturb the trial such cases this court should except patently I do erroneous. where the decision was "frightened upset.” and not doubt that the stopped the law in the act of She had been whiskey), illegal quantity (possessing and facing charges, being possibility criminal realized the condemned. incarcerated, automobile having and For upsetting experience. frightening Such must be a is the some, experience such an possibility Perhaps the law. keeps them within restraint in the future. do as much for the defendant will I the trial and therefore judge would affirm Hall Presiding Judges that I am authorized to state concur in this dissent. Judge and Eberhardt et THE STATE. 49036. CADLE al. v. Chief and state suppress writing motion to "shall be and seizure showing wherein were Brannen v. (b); unlawful.” Code The motion here alleged grounds that executed in illegally "The affidavit was information; it contains false materially allegations place to be searched is vaguely inaccurately described; procedures effectuating reporting followed; searches were not and that duly supported without cause and not warrant. The affidavit insufficient.” facially Not one fact was alleged which would show that the search and seizure were unlawful. The motion to suppress was defective and the trial procedurally judge correctly hearing dismissed the motion without evidence. affirmed. Argued February 1974 Horn,
Al appellant. Ison, Keller, H. Attorney, William District Robert E.