Opinion
45502.
ARGUED SEPTEMBER 15, 1970.
DECIDED OCTOBER 16, 1970. REHEARING DENIED NOVEMBER 6, 1970.
Receiving stolen goods. Jackson Superior Court. Before Judge Dunahoo.
James W. Paris, Millard G. Gouge, for appellant.
Nat Hancock, District Attorney, for appellee.
1. An arrest may be made without a warrant where there is probable cause to believe that the person arrested has committed an offense and is fleeing from the scene of the crime, and where by reason of the suspect's attempted flight there is no time to procure a warrant before making the arrest.
2. The testimony of a trainer and handler of dogs is not by that fact made admissible where it refers to the conduct of the animals in following a specific trial not known to the witness except by hearsay. Here the admission of the testimony was harmless because substantially the same evidence was offered without contradiction by another witness who personally observed the event.
3, 4. The remaining enumerations of error are without merit.
ARGUED SEPTEMBER 15, 1970 — DECIDED OCTOBER 16, 1970 — REHEARING DENIED NOVEMBER 6, 1970 — CERT. APPLIED FOR.
Garrison was tried on a two-count indictment charging him with larceny of an automobile and receiving stolen goods. He was acquitted of the larceny, convicted on the second count, his motion for new trial overruled, and he appeals from the judgment of conviction.
The following evidence stands uncontradicted: Eubanks' Chevrolet was stolen during the night of May 29, 1967. On the same night exits to U.S. Highway I-85 in Jackson County were under surveillance because of evidence that automobiles were being stolen, stripped, and abandoned in an adjacent area. At about 5:15 a. m. on the following morning a car turned down the ramp, an unsuccessful effort was made to stop it and after a chase of about two miles the driver, who was the sole occupant, jumped out and ran into the woods. Within 20 to 30 minutes dogs were put on the trail and disappeared in the woods in the direction taken by the fugitive. A witness who had control of the dogs and trainers kept in touch with the handlers by walkie-talkie. The dogs were accurate and well trained. They were next seen by those testifying running from a field to a barn on Stowe's premises and from there to the back door of his house. At about a quarter to seven the defendant, who was known to Stowe, knocked on his front door and asked to use the telephone. Shortly thereafter the police officers who had come to the house and observed the dogs talked to Stowe who gave them permission to come and affirmed that a man had recently entered. The defendant was found in Stowe's bed. On being ordered to get up he attempted to put on Stowe's pants over his underwear but was stopped by Stowe, who said: "You can't wear them, them's mine." The defendant then put on the bermuda shorts which he had worn on entering the house and which he had afterward placed under the bed mattress. His shoes were missing and his legs were scratched as though by briars. A later examination of the automobile revealed a fingerprint of the defendant on the left front vent window.
1. Insofar as the motion to suppress evidence is based on an illegal search, it does not appear that the premises were searched or any evidence seized. The entry was by permission of the owner who directed the officers to his bedroom where they found and arrested the defendant. Insofar as it is based on an illegal arrest without a warrant, the facts known to the arresting officers at the time, including substantially the chronology detailed above except for the fingerprint evidence, was sufficient to constitute probable cause for them to believe that the defendant had committed an offense. Granting that they had no identification of the particular stolen car at the time, they had general knowledge of the probable presence of stolen cars at the time and place in question, plus the fact that the driver of this car refused to stop when ordered, that he abandoned the car with the motor running and fled, and that the car switch had been knocked out. That the defendant was found at the end of a trial commenced by the bloodhounds at the scene of the abandoned car constitutes some evidence that the defendant was the fugitive, and flight is ground for arrest without a warrant where there is reasonable cause to believe the fugitive is the offender and the flight itself makes it impracticable to go elsewhere in search of a warrant. Code § 27-207; Peters v. State, 114 Ga. App. 595 ( 152 S.E.2d 647). This testimony was properly admitted.
2. Objection was made to testimony that the dogs "ran going west from this rock crusher, then made a circle around into a barn area and then to a house." The witness was not at the house or barn in question and it appears from the context that he was repeating information received by walkie-talkie from handlers actually accompanying the dogs. This testimony was not admissible, except insofar as it might have explained the conduct of other police officers who went to the area of the barn and house and thereafter made the arrest. The fact that the dogs were generally under the supervision and control of the trainer who was testifying gives him no license to state factually what they did in his absence. However, Melton, the man in the first car arriving at the house, testified: "They stopped the car in the road and we could see the dogs out there at the edge of an old barn there, and the dogs were headed towards the house and we jumped out of the car and I ran directly to where the dogs were... I went directly to the barn and he kept coming with the dogs and they came to the back of the house at the back door." The admission of hearsay evidence is harmless where the same facts are established by uncontroverted competent testimony. Whitehead v. State, 43 Ga. App. 186 ( 158 S.E. 345). The statement that the dogs "ran west from this rock crusher" was also immaterial, there being testimony that the dogs ran in the direction in which the driver of the automobile had fled. Enumerations of error 2 and 3 are without merit.
3. It has been held in other jurisdictions that it is improper for the State on cross examination of a character witness for the defendant to permit hypothetical questions formed with a view toward eliciting the answer that the witness would not think the defendant had a good character if he had known he committed the offense for which he is currently on trial. Pippen v. State, 126 Tex. Cr. 163 ( 70 S.W.2d 598); State v. Nelson, 200 N.C. 69) 156 S.E. 154). Similar questions have, however, been permitted in Georgia on the cross examination of character witnesses for the defense. Holley v. State, 191 Ga. 804 (5) ( 14 S.E.2d 103); Banks v. State, 113 Ga. App. 661 ( 149 S.E.2d 415).
4. The court charged: "Before you would be authorized to convict on circumstantial evidence alone, the proven facts must not only be consistent with the hypothesis or conclusion of guilt but must exclude every reasonable hypothesis or conclusion except that of the guilt of the accused." This statement is less argumentative, and therefore more satisfactory, than the charge on the same subject requested by the defendant. We do not find the instructions as to sentencing the defendant in the event of a guilty verdict in any way misleading, especially in view of the fact that the jury acquitted on the first count of the indictment. The statement: "later on the court will send you the indictment and other evidence in the case" is inaccurate in that the indictment is not evidence ( Sides v. State, 213 Ga. 482, 485 ( 99 S.E.2d 884)), but the jury was instructed to this effect earlier in the charge, and considering the instructions as a whole we find no reversible error.
Judgment affirmed. Hall, P. J., and Evans, J., concur.