The defendant was indicted for possession of burglary tools, theft by taking and five counts of burglary. He duly filed a motion to suppress evidence on the grounds that an entry into his motel room was illegal and that his subsequent arrest was without a warrant, was illegal and that it violated his rights guaranteed by the State and Federal Constitutions. After a hearing the motion to suppress evidence was denied. The case came on for trial at which the jury found the defendant guilty of the offense of possession of burglary tools and fixed his punishment at two years in the penitentiary; the jury also found the defendant guilty of the offense of theft by taking and fixed his punishment at five years, and found the defendant guilty on one count of burglary and fixed his punishment at thirteen years. Sentence was entered upon the jury verdict.
The defendant filed a motion for new trial and an amendment thereto. The motion as amended was overruled on each and every ground thereof. Appeal was taken to this court. Held:
Subsequently, pursuant to a search warrant, the defendant's car was examined and in the trunk of the car was found the missing television sets. The woman found in the room gave testimony tending to incriminate the defendant.
We find no violation of the principle set forth in Miranda v. Arizona, supra, since at the time the offense of giving false information to the officers was committed the investigation had not focused on the defendant, and the defendant was not then in custody.
None of the incriminating evidence against the defendant as to the charges of which he was convicted was obtained as a result of any search of the defendant's room. The pistol and the marijuana are not relevant to this case. It is harmless error to overrule a motion to suppress evidence which is never introduced; furthermore, testimony is outside the scope of a motion to suppress, and should be objected to on the trial. Reid v. State, 129 Ga. App. 660
, 661, (200 SE2d 456
). The only objection made on the trial was to one of the officer's entire testimony. Under the circumstances, there is no basis to exclude either the woman's testimony or the evidence obtained, under a search warrant, by search of the defendant's car.
The defendant himself made no incriminating statements or in any way produced any evidence which was used against him. There being no grounds to exclude any evidence actually offered by the state, the trial judge correctly overruled the motion to suppress and admitted the proffered evidence.
2. The evidence was more than ample to sustain the conviction and no error appears in the overruling of the motion for a new trial.
Fred M. Hasty, District Attorney, Charles H. Weston, Walker P. Johnson, Jr., for appellee.