State v. Thomas

Full title: THE STATE v. THOMAS

Court: Court of Appeals of Georgia

Date published: May 17, 1979

257 S.E.2d 28 (Ga. Ct. App. 1979)

150 Ga. App. 170

Opinion

57598.

SUBMITTED APRIL 9, 1979.

DECIDED MAY 17, 1979. REHEARING DENIED JUNE 5, 1979.

Motion to suppress. Fulton State Court. Before Judge Alexander.

Hinson McAuliffe, Solicitor, Leonard W. Rhodes, Assistant Solicitor, for appellant.

Frank J. Petrella, for appellee.

BANKE, Acting Presiding Judge.

The state appeals the partial grant of the defendant's motion to suppress evidence in this prosecution for the distribution of obscene materials. It is urged both that the motion is facially defective and that the defendant did not meet his burden of proving that the search and seizure were illegal. Held:

1. The contention that the motion was facially defective cannot be considered on appeal since it was not raised in the trial court. See Nix v. State, 94 Ga. App. 141 (2) ( 93 S.E.2d 783) (1956); Bell v. State, 144 Ga. App. 692 (1) ( 242 S.E.2d 345) (1978).

2. The burden of proving that the search was lawful was on the state, not the defendant. Code Ann. § 27-313 (b); State v. Mabrey, 140 Ga. App. 577, 579 ( 231 S.E.2d 461) (1976).

Judgment affirmed. Underwood and Carley, JJ., concur.

SUBMITTED APRIL 9, 1979 — DECIDED MAY 17, 1979 — REHEARING DENIED JUNE 5, 1979 — CERT. APPLIED FOR.