These defendants were jointly indicted, tried and convicted for possession of marijuana, amphetamines and cocaine.
1. Motion to Suppress Evidence, (a) Sgt. Moore of the Tuskegee, Alabama, Police Department testified that he had two years’ experience in narcotics work; that while off *234 duty in Columbus, Georgia, accompanied by a friend, the latter was approached by persons who offered to sell him narcotics, and was shown what from his experience appeared to be cocaine. The men then talked with Moore at the friend’s instance. A man in the back seat of defendant’s automobile (later identified as Graham) handed some marijuana out the window. The witness indicated he was amenable to a purchase and suggested going to a more secluded place, at which point one of the defendants suggested Sambo’s. Moore and his companion accompanied by one defendant followed the men, who on arrival showed them another brick of marijuana removed from the car trunk. The witness offered to get money and return, and the Alabama officers then contacted a Columbus police unit containing Officers Long and Blanco, told them the men were in Sambo’s Restaurant waiting to make the sale and that some of the drugs were inside the car and the rest in the trunk, giving the description and license tag number of the car. Long flashed his light inside the car and saw a package on the rear floorboard which from his experience on the narcotics patrol he believed to be a "block” of marijuana. He then entered the restaurant, had the three defendants pointed out to him, and arrested them, obtained keys to the car, searched it, and found the remaining drugs (another brick of marijuana, amphetamine and a package with trace of cocaine).
The officers had a right to presume that their Alabama opposite number had in fact been shown the drugs which they described, and the presence of these transients in a restaurant in the early hours of the morning, with what appeared to be drugs which they were attempting to sell stashed in an automobile in the adjacent parking lot, gave both probable cause and such exigent circumstances as to justify the warrantless arrest and the ensuing search of the vehicle.
Carroll v. State,
(b) During the hearing on the motion to suppress evidence conducted outside the presence of the jury it was not error to restrict cross examination on the appearance of the brick of marijuana seen through the car window. The witness established that he drew this conclusion,
*235
based on prior knowledge, from "looking at the bag, its form and shape.” There was sufficient evidence to qualify this witness as an expert (a year’s special experience on a narcotics squad in a hippie district in which his unit participated in over 900 arrests). As the court ruled, at this stage of the proceedings he was interested in the sufficiency of evidence to establish only that the officer had probable cause to believe in the existence of the drugs. "To justify the arrest without warrant, the officer need not see the act which constitutes the crime take place, if by any of his senses he has personal knowledge of its commission.”
Lynn v. State,
(c) Appellants further contend that the physical evidence was erroneously admitted because there was testimony that among the drugs recovered from the automobile was one marijuana cigarette, wheréas when the cache was produced in court this cigarette was missing. As the appellant points out, the burden is on the state to show with reasonable certainty that no tampering with the evidence has occurred, but where there is only a bare speculation of tampering it is proper to admit the evidence and let whatever doubt remains go to its weight.
Toole v. State,
2. Sufficiency of Evidence. Upon the jury trial, Moore and Long testified substantially as they had done in the suppression hearing. Moore’s testimony was supported by that of his Alabama companion Trabue, who swore he was first approached by Graham with an offer to sell "some good herb” and he led the defendants to Moore, whom he knew to have been in a narcotics squad; that Moore suggested going to a more secluded place' and Graham rode with them to Sambo’s, following the other car with the remaining defendants in it; that they arranged a deal ánd left ostensibly to obtain the balance of the $300 purchase price, stopped a police car, and reported *236 on these facts. The two remaining witnesses testified to receiving and examining the recovered drugs. The defendants offered no testimony.
(a) The evidence is not, as contended, entirely circumstantial.
(b) While
mere
presence at the scene of a crime is insufficient as a basis for conviction
(Greeson v. State,
3.
Remaining Enumerations of Error,
(a) "Appointment by the court of one attorney to represent both defendants jointly indicted and jointly tried for a felony less than capital, did not violate the rights of either defendant to the effective assistance of counsel under the Sixth and Fourteenth Amendments in the absence of some genuine inconsistency between the defenses or the interests of defendants.”
Davis v. State,
Joint representation and joint trial are two different aspects of trial procedure, but nonetheless hold enough in common to allow analogy. The main distinction to be noted is that a defendant ordinarily has control over who will represent him, but he may have no control over whom he will be tried with. The Code of 1861 merely noted that defendants jointly accused might be separated for trial. Beginning with Ga. L. 1878, p. 59, this was allowed "if either of them elect to sever,” giving an absolute choice to the defendant, who, however, could not complain if the question was not timely raised prior to trial.
Trowbridge v. State,
Judgment affirmed.