Defendant was charged by accusation with unlawful possession of more than the limit of tax paid liquor and unlawful possession of nontax - paid cigarettes. He was convicted by a jury and appeals. We affirm.
1. Appellant alleges that the trial court erred in overruling his motion to suppress evidence seized by the state during a search of appellant’s house. The evidence shows that although a warrant to search appellant’s house had issued, the warrant failed to list the correct legal owner of the house. Upon discovering this defect in the warrant, the search was abandoned. Even though permission to search the house was lawfully given, the authorities did not conduct a search. When other law enforcement officials arrived and consent was again given, a search was conducted.
Appellant contends that the presence of law enforcement officials was so oppressive that voluntary consent could not be given. We do not agree. "[Ujnder all the circumstances shown in connection with the consent given the officers to search without a warrant, the trial judge was authorized to find that the consent was not the product of coercion, duress or deceit.”
Code v. State,
2. Appellant argues that the absence of an affidavit, upon which an accusation must be based, rendered the criminal proceeding null and void. It is of course true that " '...valid affidavit is essential to support an accusation and without such an affidavit the whole trial is a nullity.’ [Cits.]”
Smith v. State,
3. Appellant asserts that the trial court erred in instructing a juror not to take notes because the case was "not really complicated.” In the absence of unusual circumstances the matter of jury note taking is left to the discretion of the trial judge.
Holcomb v. State,
4. Appellant argues that the trial court erred in permitting testimony that numerous "freshly emptied” liquor bottles were found during the search of appellant’s house. This enumeration must fail. Aside from the fact that possession of empty liquor bottles is no crime, "[a] free and voluntary consent that one’s belongings be searched is a waiver of objection to the evidence produced as a result of the search.”
Young v. State,
5. Appellant claims that the court erred in failing to conduct a Jackson v. Denno hearing to determine voluntariness of a confession before allowing jury consideration. Testimony shows that while the search was being conducted the appellant said, "This is my personal stock of liquor. This is my drinking liquor. These is my cigarettes...I did not know they was in violation.”
Appellant is correct. There can be no doubt that this statement was not merely an admission but was sufficient to constitute a confession.
Zetterower v. State,
Defendant objected to the admission of the alleged confession by stating that: "I’m going to have to object... [Pjerhaps we ought to be talking about this without the jury hearing it, but [the district attorney] has failed to lay the foundation as to whether or not the defendant was under arrest at the time these admissions were made, if they were in fact admissions. He has failed to lay a foundation as to whether or not the defendant was advised of his rights concerning statements made by him and their possible use. There has been no hearing as to whether or not that has been done. . .”
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Thus, this is not a case where no objection has been made. See
Chadwick v. State,
This is also not a case where an improper objection has been made. See
Day v. Mills,
Accordingly, the case must be returned to the trial court, and the trial judge must hold a hearing to determine whether the confession was voluntary; in the absence of such a hearing, or in the event the judge finds the confession was coerced, the verdict will be set aside. Schneider v. State, supra.
6. Appellant submits that the failure to grant a directed verdict of acquittal constituted reversible error. Code Ann. § 27-1802. This enumeration must fail. Even without the introduction of the liquor and the cigarettes, there was sufficient evidence to authorize conviction. The state is not required to introduce contraband into evidence to establish its case.
Patterson v. State,
7. Appellant asserts that the trial court improperly restricted opening and closing argument. Code Ann. § 27-2201. The trial judge instructed appellant that a waiver of the opening argument by appellant would result in limiting the closing argument to rebuttal in response to the state’s closing argument. We cannot say that appellant was denied any statutory right under Code
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Ann. § 27-2201. Appellant exercised his right to open and waived closing argument. No restriction was imposed on appellant. Harm as well as error must be shown to authorize reversal by this court.
Hollis v. State,
8. The trial court charged that "an accused may testify or not in his own behalf as he may choose. When an accused person elects not to testify this shall be held against him in no manner whatsoever, nor may any inference unfavorable be drawn therefrom by the jury.” This charge is proper.
Woodard v. State,
9. The trial court charged that "the burden of proof is upon the state to prove each element of the offense charged to your satisfaction and beyond a reasonable doubt... The defendant comes into court and enters upon the trial of the case with the presumption of innocence in his favor and this presumption remains with him throughout the trial until his guilt is established by proof.” Appellant contends that this charge was erroneous because the charge should have concluded with "proof beyond a reasonable doubt.” The record shows that the judge recharged the jury that "the burden of proof...is upon the state to prove each element of each offense charged in the accusations to your satisfaction and beyond a reasonable doubt.” This enumeration is without merit.
Payne v. State,
10. For the reason stated in Division 5, this case is remanded to the lower court for a separate determination in accordance with Jackson v. Denno,
Judgment affirmed with direction.