Opinion
42234.
ARGUED SEPTEMBER 12, 1966.
DECIDED SEPTEMBER 29, 1966. REHEARING DENIED OCTOBER 20, 1966.
Possessing burglary tools. Fulton Superior Court. Before Judge Boykin, Emeritus.
Henritze, Baker Bailey, Walter M. Henritze, Jr., for appellant. Lewis R. Slaton, Solicitor General, Jess H. Watson, J. Walter Le Craw, for appellee.
1. Implements of crime discovered by a search incident to a lawful arrest are admissible in evidence. Where the arresting officer, who had two days earlier received a warrant for the arrest of the defendant on a felony charge from another county and, failing to find him, had returned it, and who thereafter recognized and stopped the defendant while he was driving an automobile, arrested him for the offense charged in the warrant, the arrest was legal to prevent a failure of justice under Code § 27-207.
2. "Enumerations of error on the admission of evidence to which no objection was made at the trial, or to which objection was made without specifying the ground of objection, are without merit." Marshall v. State, 113 Ga. App. 143, 146 (3) ( 147 S.E.2d 666). In like manner, when the objections made on the trial of the case are properly overruled, error cannot be urged for the first time in this court on the ground that the evidence was objectionable for some other reason not then made a ground of objection.
ARGUED SEPTEMBER 12, 1966 — DECIDED SEPTEMBER 29, 1966 — REHEARING DENIED OCTOBER 20, 1966.
It appears from the evidence on the trial of the defendant in Fulton County for possessing burglary tools that on October 7, 1965, a warrant issued from the Magistrate's Court of Clarke County, for the arrest of Robert Croker, address unknown, for larceny of a Ford automobile. The warrant was sent to Fulton County and on October 8 was in the possession of Bridges, an Atlanta police officer, who checked the defendant's Atlanta "hang out" and, not finding him, had the warrant returned to Clarke County. On October 10, the defendant, driving an automobile in Atlanta and failing to yield the right of way at an intersection, almost collided with the police car which Bridges was driving. The officers stopped Croker's vehicle, recognized him, and took him in custody. At the same time they searched the defendant's car and discovered the burglary tools on which the present indictment is based. By October 13 the warrant was back on file in the office of the Fulton County sheriff. Objections were made to the introduction of these tools in evidence on the grounds that the search, being without a warrant, was illegal and that the warrant itself was void.
1. An arresting officer may arrest under a warrant issued by a judicial officer in any county in the state. Code § 27-209. However, the officer should have the warrant, whether for search or arrest, in his physical possession or so near at hand that it can be exhibited on demand. Shafer v. State, 193 Ga. 748 ( 20 S.E.2d 34); Hall v. State, 113 Ga. App. 587 ( 149 S.E.2d 175). "For the purpose of making an arrest, a warrant is not in the possession of the officer when it is in his house some distance from the scene of the arrest." Adams v. State, 121 Ga. 163 (3) ( 48 S.E. 910). Where the offense is a misdemeanor not committed in the presence of the arresting officer, and where flight is not involved, no arrest may be made without a warrant, and the mere fact that a warrant exists but is not accessible at the time of the arrest will not justify the arrest. Adams v. State, supra; Giddens v. State, 154 Ga. 54 ( 113 S.E. 386); Luffman v. State, 166 Ga. 296 ( 143 S.E. 371). Indubitably, where the crime is a felony the rule is broader. "[W]hen a felony has been committed, any private person acting upon a reasonable and probable ground of suspicion, may also apprehend the person suspected of the crime. The apprehension, under these circumstances, may be without a warrant, but it is only for the purpose of taking the offender before a magistrate. He may be taken and detained, until he can be committed to the custody of the law. The arrest is for no other purpose." Long v. State, 12 Ga. 293, 318, and see Code § 27-211. Under Code § 27-207 an officer may arrest without a warrant if the offense is committed in his presence, if the offender is endeavoring to escape, or if "for other cause there is likely to be a failure of justice for want of an officer to issue a warrant." What the last quoted phrase includes is obscure, but it is definite that it does include a situation where a police officer, knowing that a warrant has been issued for a felony, and with probable cause to believe that if he takes the time to procure it the offender will escape, makes the arrest although the warrant is not in close physical proximity at the time. Paige v. State, 219 Ga. 569, 572 ( 134 S.E.2d 793); Cash v. State, 222 Ga. 55 (2), 57 ( 148 S.E.2d 420). The arrest was not illegal, and the burglary tools, discovered by a lawful search incident to the arrest, were properly admitted in evidence.
2. The second headnote needs no elaboration.
Judgment affirmed. Nichols, P. J., and Hall, J., concur.