Opinion
45075.
SUBMITTED FEBRUARY 4, 1970.
DECIDED FEBRUARY 20, 1970.
Possessing narcotics. Muscogee Superior Court. Before Judge Davis.
Ernest C. Britton, for appellant.
Eugene Hardwick Polleys, Jr., District Attorney, for appellee.
Where the defendant in a criminal case has made a motion for a new trial based on newly discovered evidence and has produced affidavits to meet all the requirements of the motion, the newly discovered evidence is the confession of another person to the crime for which defendant was convicted, and the State has produced no countershowing to the truth of the affidavits, it is error for the court to deny a new trial.
SUBMITTED FEBRUARY 4, 1970 — DECIDED FEBRUARY 20, 1970.
The appeal is from a conviction for the offenses of possessing narcotics and possessing a pistol while in the commission of a felony.
Defendant is the operator of the Fountain City Club in Columbus. On March 5, 1969, several law enforcement agencies made a combined raid on these premises. A magistrate had issued a search warrant upon probable cause that defendant and several others named had in their possession at that location dangerous drugs and narcotics. The club is partitioned into two rooms, each approximately 35' x 50'. On March 5 there were four employees and about six customers present. The raiding party consisted of an estimated 37-40 officers, most of whom were strangers to one another. When the first phalanx entered, defendant was sitting alone in a booth with his back to the door. Detective Caine and Lt. Boone went immediately to this booth. Lt. Boone said he walked over, handed the warrant to defendant and told him they were going to search the place. He does not remember what was said or done after that. Detective Caine said that as they entered, defendant had looked back and had made a suspicious movement of his shoulders, so he told defendant to stand up before Lt. Boone gave defendant the search warrant. Then he personally searched defendant and seized a pistol he found. Apparently after this point he considered defendant to be under arrest. Defendant said that Detective Caine came up to him as he was just sitting there and told him, "You are under arrest. Stand up. I want to search you," and that only after he had been searched was the warrant handed to him. Sometime during these few minutes Detective Caine also looked around the booth but found nothing. Some three to ten minutes later, he searched the booth again. When removing the seat cushions, he saw 25 packets of heroin fall to the floor. These were later properly identified and offered into evidence. During the raid several other people were also arrested for possession of narcotics (including a Raymond Jackson) and a large quantity of marijuana was found in an empty booth and near the refrigerator. All the testimony indicates that the club was a scene of bedlam during the raid with hordes of people milling about.
1. Several of defendant's enumerations deal with the admission of all evidence concerning the raid, including oral testimony and the contraband seized, as a product of illegal entry, illegal search and illegal arrest. Since the club is a business establishment open to the public, we find no merit in the contention of illegal entry. The search of both defendant and the premises was conducted under a warrant sufficient on its face to support a showing of probable cause. Sams v. State, 121 Ga. App. 46 ( 172 S.E.2d 473). As for the defendant's arrest, even though the evidence is in conflict about precisely when it took place, the trial court would have been authorized to find it occurred after probable cause had been shown. Further, defendant never made a written motion for suppression of this evidence as provided in Code Ann. § 27-313, nor does he satisfactorily explain his failure to do so. Gilmore v. State, 117 Ga. App. 67 ( 159 S.E.2d 474). The court did not err in the admission of this evidence.
2. Defendant enumerates as error the denial of his motion for a new trial based on newly discovered evidence. Defendant has complied with all the requirements of such a motion. He produced an affidavit of Raymond Jackson which stated that Jackson was the possessor of the narcotics, that he had placed the package between the cushions of the booth the evening of the raid, and that defendant had no knowledge of his actions. This evidence relating to new and material facts, is not merely cumulative or impeaching in its character. Code § 70-204. Defendant produced an affidavit made by an associate of Jackson's giving evidence of his character and credibility. Burge v. State, 133 Ga. 431 ( 66 S.E. 243). Defendant also produced affidavits of both his counsel which stated they did not know of the existence of the evidence before the verdict and which related facts showing that it could not have been discovered by the exercise of ordinary care. (Jackson had absconded and was only recaptured after defendant's trial). Taylor v. State, 132 Ga. 235 ( 63 S.E. 1116). Finally, it would appear that on the face of the evidence its probable effect would be to produce a different verdict if believed by the jury. Burge v. State, supra.
We have searched the record and the State's brief and can find no countershowing by the State to the truth of these affidavits upon which the court could base the exercise of its discretion. The court has seemingly passed upon the credibility of the affiants and has said, in effect, that a jury could not believe them as a matter of law. We believe the court abused its discretion when it denied defendant's motion for a new trial. Stephens v. State, 99 Ga. 200 ( 24 S.E. 853).
3. All other errors enumerated by defendant are either without merit or are unlikely to arise at another trial.
Judgment reversed. Deen and Evans, JJ., concur.