( b) Where a witness testifies that the confession was freely and voluntarily made, and no objection is made to such testimony on the ground that it is a conclusion, it is presumed that such ground of objection has been waived. See Lemon v. State, 80 Ga. App. 854 ( 57 S.E.2d 626). 5. Failure to charge the law relating to circumstantial evidence is not error in the absence of request where the conviction is not dependent upon circumstantial evidence alone.
A failure to make such objection will be treated as a waiver. . . ." Andrews v. State, 118 Ga. 1 [(hn. 1)] (43 S.E. 852). Accord Lemon v. State, 80 Ga. App. 854, 855 (1) ( 57 S.E.2d 626). While we agree that the photographic array depicting only the prime suspect, i.e., defendant, with his hair in "plats," constitutes a valid basis for challenging that array as impermissibly suggestive, we must conclude that defendant waived any such objection in the case sub judice by failing to urge this specific ground before the trial court. Consequently, this enumeration presents nothing for review.
Andrews v. State, 118 Ga. 1 ( 43 S.E. 852)." Lemon v. State, 80 Ga. App. 854, 855 (1) ( 57 S.E.2d 626). Here defendant failed to state why the documents should not have been admitted. He merely objected to the portion of the documents setting forth the commission of various offenses.
The state, however, produced testimony which established a prima facie showing of voluntariness of the confession. See generally Harrington v. State, 139 Ga. App. 428 ( 228 S.E.2d 591) (1976); Lemon v. State, 80 Ga. App. 854, 857 ( 57 S.E.2d 626) (1950). The trial court was entitled to believe the state's evidence rather than the defendant's ( Davis v. State, 153 Ga. App. 847 (1) ( 267 S.E.2d 263) (1980)), and, since it was based upon evidence of record, the court's finding of voluntariness was not clearly erroneous.
This testimony established a prima facie showing of the admissibility of the confession. See Lemon v. State, 80 Ga. App. 854, 857 ( 57 S.E.2d 626). Witnesses for the defense testified that the sheriff threatened to throw the defendant's wife in jail if he did not confess to the crime.
It was his testimony, and not the statement given the police, that was before the court. The cases of Jackson v. Denno, 378 U.S. 368 ( 84 SC 1774, 12 L.Ed.2d 908); Massiah v. U.S., 377 U.S. 201 ( 84 SC 1199, 12 L.Ed.2d 246); McLemore v. State, 181 Ga. 462 ( 182 S.E. 618, 102 ALR 634); Lemon v. State, 80 Ga. App. 854 ( 57 S.E.2d 626); Smith v. State, 64 Ga. App. 312 ( 13 S.E.2d 96); McKennon v. State, 63 Ga. App. 466 ( 11 S.E.2d 416), and others dealing with admission of confessions of the defendant which may have been obtained improperly have no application to this situation. Cf. Jones v. State, 4 Ga. App. 741 ( 62 S.E. 482); Shelton v. State, 111 Ga. App. 351 (8) ( 141 S.E.2d 776).
`No, sir,' and he came on at me, he drawed back and said maybe he ought to slap me, he acted like he was angry and I didn't want to get hurt, I had been hurt once like that, so I would have told him anything right then just to keep from getting beat up . . . When we got to this man's house that the car belonged to the Chief of Police said, `Is this the place where you got the car?' and staring there right in a man's face, in my mind, I told him, `Yes sir.' I just told him I was with Eddie when he stole the car, because I was afraid to, the way he was looking at me and the words he was speaking, I would have told him anything." Testimony as to the confession was admitted in each case after the witness testified that the defendant had been informed that he did not have to say anything and had a right to counsel, and that he was not promised any reward or threatened in any way. The preliminary proof, in the absence of objection to the testimony, meets the requirements of Lemonv. State, 80 Ga. App. 854 ( 57 S.E.2d 626) and was properly allowed in the first instance. The remaining testimony and statement of the defendant merely raised a question for the jury as to whether the confession had been freely and voluntarily made, and the motion to strike at the conclusion of the evidence was without merit. Mangum v. State, 201 Ga. 519 ( 40 S.E.2d 423); Garrett v. State, 203 Ga. 756 ( 48 S.E.2d 377); Elliott v. State, 87 Ga. App. 456 ( 74 S.E.2d 366).
Where it is sought to introduce evidence of such confession without first making such preliminary showing a timely objection thereto ought to be sustained. Lemon v. State, 80 Ga. App. 854 ( 57 S.E.2d 626). In the instant case a witness for the State was allowed to testify that the defendant told him that he drove the tractor (the motor vehicle which he was charged with driving while intoxicated) from the prosecutor's house to a neighboring house, over the objection that "he didn't lay a foundation for that . . . he didn't lay any foundation for a confession.
ied that the defendant made the statement voluntarily; that the witness who took the statement, a police officer or deputy sheriff, happened to stop by the jail one night after having gone to a ball game with his wife; that the defendant heard him and called him to his cell and said that he wished to make a statement and the witness and his wife sat down and transcribed the statement then and there. Even if, as contended by counsel for the defendant, the defendant had been held "incommunicado" for four days, it does not appear from the evidence that the written statement or confession was given by the defendant and signed by him during that four-day period, or that the defendant was deprived of any of his rights in immediate connection with the giving of the confession. Testimony as to the circumstances under which the statement was taken was given by the witness in rebuttal, and under all the facts and circumstances the foundation laid sufficiently conformed to the test laid down in Lemon v. State, 80 Ga. App. 854 ( 57 S.E.2d 626). See also, Elliott v. State, 87 Ga. App. 456, 458 (2) ( 74 S.E.2d 366).
The court committed error in ruling that the testimony of witness Jolly "that the defendant made a statement in this case freely and voluntarily" was not a conclusion. See Lemon v. State, 80 Ga. App. 854 ( 57 S.E.2d 626) wherein it is held that such a statement is a conclusion and, on objection, the State must make a prima facie showing of the voluntariness of the confession by showing the facts and circumstances surrounding its procurement before it is admissible in evidence. We do not think that the error of the court in stating that such testimony "is not a conclusion" is itself reversible for the reason that the witness proceeded to cure the error by stating the facts surrounding the obtaining of the confession, from which the jury might well have concluded that such confession was in fact voluntary.