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Burglary. DeKalb Superior Court. Before Judge Hubert.
NICHOLS, Presiding Judge.
1. The trial court did not err in overruling the defendant's motion to suppress evidence.
2. The arrest of the defendant being a legal arrest, the evidence and voluntary confession arising therefrom were properly admitted in evidence.
3. An enumeration of error complaining that the trial court expressed an opinion during the trial presents nothing for decision when no objection or motion for mistrial was made during the trial of the case.
The defendant was indicted and convicted under a multiple count indictment charging him with burglary. On the trial of the case the State introduced evidence that the defendant was stopped for questioning and driver license examination after he was observed at approximately 3:40 a. m., traveling up and down a public road and then behind two business establishments that were closed within a period of approximately five minutes. When the defendant was stopped and the officers were standing beside his automobile they saw, with the aid of a flashlight, the following articles inside the automobile, to wit: a pair of work gloves, a flashlight, a screwdriver, a crowbar and an empty .38 caliber Smith & Wesson ammunition box. Upon discovery of such items, and with knowledge of a series of burglaries in the area, they held the defendant for questioning by a superior officer. Upon further investigation of the automobile, with the defendant's permission, a .38 caliber pistol and merchandise from a burglarized store were found in the automobile, the pistol on the floorboard near the gas pedal and the merchandise in the trunk. Thereafter, the defendant made an oral and a written statement in which he admitted various burglaries including the ones of which he was found guilty by the jury. After the verdict and sentence the defendant filed a motion for new trial which was overruled. In the present appeal the defendant enumerates as error the failure of the trial court to consider a motion to suppress evidence and the admission of evidence, and contends that the trial court expressed an opinion during the trial of the case.
1. The first enumeration of error complains that the trial court erred in failing to hear and grant his motion to suppress certain evidence. Under the decisions in Jackson. v. State, 108 Ga. App. 529 (133 SE2d 436), and Green v. State, 110 Ga. App. 346 (138 SE2d 589), such action by the trial court was not error.
2. Enumerations of error numbered 2, 3 and 5 all deal with the admission in evidence of the items found in the defendant's automobile and the written confession made by the defendant after his arrest.
When the defendant was first seen he was not stopped and it was only after he drove back over the same road approximately five minutes later and then drove his automobile behind two business establishments that were closed that he was stopped by the police officers, and there is no contention made that the officers did not have authority to check his driver's license although it is contended that the above amounted to an arrest. Such action did not amount to an arrest; however, had the defendant refused to exhibit his driver's license when requested to do so this would itself have been a crime. See Ga. L. 1937, pp. 322, 347; Ga. L. 1951, pp. 598, 601 (Code Ann. 92A-9906).
While lawfully examining the defendant's driver's license the officers saw tools commonly used to commit burglaries inside the vehicle and the arrest which then took place was lawful. See Richardson v. State, 113 Ga. App. 163 (146 SE2d 653); Barron v. State, 109 Ga. App. 786 (137 SE2d 690). After the lawful arrest the defendant gave the officers permission to examine the automobile more closely and the fruits of a burglary were found as well as the .38 caliber pistol, and the confession later freely and voluntarily made was admissible. See Sims v. State, 221 Ga. 190 (144 SE2d 103).
3. The sole remaining enumeration of error complains that the trial court expressed an opinion during the trial of the case in violation of the provisions of Code 84-1104. No objection or motion for mistrial was made on the trial of the case and the first time the defendant sought to complain was in the amended motion for new trial. No question is presented for decision by such enumeration of error. See Calhoun v. State, 210 Ga. 180 (3) (78 SE2d 425); Shepherd v. State, 203 Ga. 635 (2) (47 SE2d 860), and citations.
Richard Bell, Solicitor General, Dennis F. Jones, Assistant Solicitor General, for appellee.
Larry Cohran, for appellant.
Friday May 22 20:33 EDT

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