The defendant, proprietor of an Atlanta antique store, appeals from a conviction of four felony counts of receiving stolen goods plus one misdemeanor count. The case involves four search warrants, all of which were considered in motions to suppress, and two multicount indictments, the first of which was nol-prossed after a number of demurrers were sustained. It further appears without dispute that the defendant purchased a number of items of silver from two of the state’s witnesses who confessed to having stolen it from various residential households and who eventually cooperated with the police to the extent of wearing "body bugs” which transmitted *765 their conversations with the defendant to police officers with receiving equipment. The nineteen enumerations of error are, insofar as possible, grouped around the principles of law involved.
1. The search warrants are here designated by the name of the judicial officer granting them. The Brock, Alverson and Shaw warrants all indicated the defendant’s place of business to be searched as 2181 Peachtree Road, Atlanta, known as, or a business known as, American Eagle Antiques. The Thompson warrant, executed 8 days after the Alverson and 9 days after the Brock warrant, states only "2181 Peachtree Road, Atlanta,” but the affidavit identifies American Eagle Antiques as the defendant’s business referred to. There was only one front door. Originally signs on the outside of the building indicated American Eagle Antiques was on one side of the interior of the building and another business on the other side; it appears from testimony that the signs were removed because the other proprietor was unhappy at the publicity. While the interior space was allocated, there was no actual physical separation of the business by door or full partitions, although separation of showcases was maintained. So far as appears, only that part of the area actually under the defendant’s control was searched, and a basement area open to the first floor generally. This case is not controlled by
Jones v. State,
2. A search warrant may be supplemented by oral testimony.
Campbell v. State,
3. The Aguilar-Spinelli tests of the informer’s tip are "(1) that the affidavit gives reasons for the informer’s reliability, and (2) that the affidavit either specifically states how the informer obtained the information
or
the tip describes the criminal activity in such detail that the
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magistrate may know it is more than a 'casual rumor circulating in the underworld or an accusation based merely on an individual’s general reputation.’ ”
Sams v. State,
4. A motion to suppress the order referred to as the Shaw warrant (which was in fact not a warrant but an order to repossess certain items seized under the Brock warrant and returned to the defendant a day or two before) was heard and denied. It is conceded that no search was made under this order, the defendant agreeing to surrender the items so returned which was done. As we have held the Brock warrant valid, objections to the Shaw order on this ground are without merit. It appears from the Alverson motion to suppress that the police officer who was the affiant in the Brock order was in fact sworn by the district attorney before Judge Shaw, and, in the absence of a transcript, we must assume produced evidence to support the petition of the district attorney to
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the effect that the items released by Judge Brock were surrendered by the latter by mistake or in excess of his jurisdiction, as found by Judge Shaw. "The presumption afforded the superior court judge rests upon the broad presumption that all public officials perform their duties in the manner and to the extent required by law.”
Irvin v. Woodliff,
5. Two of the warrants were executed in the wee hours of the morning. Since this was a time of day when the surrounding businesses were devoid of customers or employees we are inclined to agree that this procedure avoided some embarrassments which would have attended a daytime search. Further, information that the goods were about to be moved, in at least one of the warrants, would justify the haste.
Veasey v.
State,
6. Connally v. Georgia, — U. S. — (97 SC 546, 50 LE2d 444), holds that a magistrate who collects fees for warrants issued, but may not collect fees for those denied, is not a neutral and detached magistrate, and that the motion to suppress evidence recovered by virtue of such a warrant should have been granted. Thompson, who issued the July 21 warrant, was a justice of the peace. We recognize that his ruling preceded the publication of the Connally case but do not put our decision on that fact. Thompson testified that he issued some two warrants a month and refused to issue others, and that in no case had he ever been paid or submitted a bill for issuing a warrant. Clearly, this habit of practice removes him from the general obloquy. Connally does not require a reversal here.
7. The denial of a commitment hearing is not cause for overturning a conviction on direct appeal.
State v. Middlebrooks,
8. The motion to produce filed on the morning the trial began came too late. Code § 38-801 (f) (g). The motion in limine seeking to suppress the tapes was properly overruled. They were intimately connected with the
modus operandi
between defendant and the burglars and,
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if the defendant’s statements relating to outsmarting the police, cautioning the burglars what territories to stay out of, and like statements did in fact present him in the light of contemplating future crimes or mentioning past ones, they are so closely connected with the res gestae as to be admissible
(Hill v. State,
9. The tapes were admissible under the standards set out in
Solomon, Inc. v. Edgar,
10. The conversations recorded by these tapes were made during conversations between burglars who routinely sold stolen goods to the defendant, by their own admission, and who contended that the defendant well knew the goods were stolen and gave them advice on what was needed and where to procure it. The conversation was thus "in furtherance of crime (if the jury believed this
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testimony), and its recordation was consented to by two of the three parties. This was sufficient to place the tapes within the exception of§ 26-3006.
Brooks v. State,
11. The appellant complains that, although he made no timely written request therefor, the court should have charged Code § 26-1810 to the effect that it is an affirmative defense that one acts under an honest claim of right to the property. The charge as a whole was full and clear to the effect that the defendant, to be guilty, must
knowingly
purchase
stolen
goods, leaving the issue one of guilty intent. There is a distinction between "claim of right” and "lack of intent.”
Breland v. State,
12. Whether the inference of guilt should arise from recent possession of stolen goods is a question for the jury.
Parrish v. Hopper,
13. An enumeration of error may not be amended after the time for filing has expired.
Mullis v. Mullis,
Judgment affirmed.