Opinion
22336.
ARGUED JANUARY 14, 1964.
DECIDED FEBRUARY 6, 1964.
Questions certified by the Court of Appeals of Georgia.
James E. Weldon, E. W. Fleming, for plaintiffs in error.
Wright Lipford, Solicitor General, contra.
In these cases questions exactly alike have been certified by the Court of Appeals to this court for answer. In each case no answer to the second question propounded is requested unless the first question is answered in the affirmative. The first question so propounded is a mixed question of law and fact and for that reason cannot be answered by this court. For some of the cases so holding, see Lynch v. Southern Express Co., 146 Ga. 68 ( 90 S.E. 527); Southern Exchange Bank v. First Nat. Bank of Dublin, 165 Ga. 289 ( 140 S.E. 753); Johnston v. Travelers Ins. Co., 183 Ga. 229 ( 188 S.E. 27); Liverpool London Globe Ins. Co. v. Stuart, 193 Ga. 437 (2) ( 18 S.E.2d 681); City of Trenton v. Dade County, 202 Ga. 190 ( 42 S.E.2d 438); Gunby v. Roberts, 205 Ga. 346 ( 53 S.E.2d 370); and Kelly v. Ga. Casualty c. Co., 216 Ga. 834 ( 120 S.E.2d 329).
Accordingly, neither question propounded by the Court of Appeals will be answered by this court, and they are respectfully returned to the Court of Appeals.
All the Justices concur.
ARGUED JANUARY 14, 1964 — DECIDED FEBRUARY 6, 1964.
The Court of Appeals (in cases No. 40186 and 40187) certified the following questions to this court:
"At approximately 8:30 a. m. on a rainy Sunday morning, November 19, 1961, a police officer of the City of Newnan, Georgia (Officer Morris), observed a stranger (later identified as Ronald E. Smith a co-indictee of the defendants), standing on the west side of Greenville Street, in the City of Newnan, directly across from a shopping center. Checking this same area approximately 15 minutes later he noticed that Smith had moved across the street to a spot approximately 15 feet from the center of the shopping center near a large boxwood tree.
"At approximately 9:00 a. m. the police received a report from a Mr. Powell that he had observed a car which he did not recognize parked in front of his dwelling about 2 blocks south of the shopping center. Upon receipt of this report other city police pulled the car in `for checking.'
"At 10:25 a. m., while continuing to cruise the shopping center area police officer Morris and another officer spotted two other strangers, later identified as Marion Raif and John Oscar Luck, on Turner Street at a railroad crossing about four hundred or five hundred yards south of the shopping center and walking in the direction of the shopping center. These officers observed that the clothing on the left arm of each man was wet almost to the shoulder. At this point Raif and Luck were arrested without a warrant and taken to the police station where they were questioned by the police chief. No evidence was introduced that they had committed any crime in the presence of the officers or that the officers had any grounds, other than as set forth above, to suspect that they had committed a felony.
"Some two and one-half hours later the police learned that a store in the shopping center had been burglarized and the safe looted of some $3,000. Raif and Luck, together with Smith, were indicted for this crime and connected to the event on the trial mainly by evidence obtained from their persons after they were arrested. Such evidence coming from their clothes which they removed under the following circumstances according to the testimony of the police officer who obtained such clothing from them. `I had those men in my custody at the County Jail. I asked them to remove the clothes. I said, "Remove your clothes so I can have them checked." They did not object. They pulled them off at my command. If they hadn't taken them off, I would have left them on. They did not tell me to keep the clothes. I did not put any more shoes and socks on them. I gave them coveralls to wear, while they were staying in jail. I couldn't say whether they had any shoes to wear down there. I didn't see them with any shoes and socks. I did not give the clothes back to them. I gave them to Chief Brown.' One defendant referred to the manner in which the police obtained the clothes in his statement as follows: `As far as the clothing they taken from us. I didn't give it to them voluntary to nobody. Whenever they asked me for them we give them the clothing. I don't know why what they wanted for them [sic].'
"Question: Under the above facts were the arrests illegal as a matter of law under Code § 27-207, 27-211?
"If the answer to the first question is in the affirmative was the evidence obtained from the persons of the defendants by the police officers, under the circumstances indicated above, inadmissible as a matter of law at their trial? See Mapp v. Ohio, 367 U.S. 643, 6 L.Ed.2d 1081, 81 S.Ct. 1684?"