State v. Thomas, 150 Ga. App. 170

Banke, Acting Presiding Judge.

The state appeals the partial grant of the defendant’s motion to suppress evidence in this prosecution for the distribution of obscene materials. It is urged both that the motion is facially defective and that the defendant did not meet his burden of proving that the search and seizure were illegal. Held:

1. The contention that the motion was facially defective cannot be considered on appeal since it was not raised in the trial court. See Nix v. State, 94 Ga. App. 141 (2) (93 SE2d 783) (1956); Bell v. State, 144 Ga. App. 692 (1) (242 SE2d 345) (1978).

2. The burden of proving that the search was lawful was on the state, not the defendant. Code Ann. § 27-313 (b); State v. Mabrey, 140 Ga. App. 577, 579 (231 SE2d 461) (1976).

Judgment affirmed.

Underwood and Carley, JJ., concur.

Case Details

Case Name: State v. Thomas

Court Name: Court of Appeals of Georgia

Date Published: May 17, 1979

Citations: 150 Ga. App. 170; 257 S.E.2d 28; 1979 Ga. App. LEXIS 2169; 57598

Docket Number: 57598

Court Abbreviation: Ga. Ct. App.