concurring specially.
I concur specially as to Divisions 2 and 5.
(2) Defendant’s complaint was that she was not granted a committal hearing within 72 hours of her arrest under a warrant. The majority opinion, which cites only cases involving a failure to hold a committal hearing, may imply that Georgia law requires a committal hearing within 72 hours of an arrest under a warrant. This is not the law of Georgia and I think we should say so.
Code Ann. § 27-210 states: “Every officer arresting under a warrant shall exercise reasonable diligence in bringing the person arrested before the person authorized to examine, commit or receive bail and in any event to present the person arrested before a committing officer within 72 hours after arrest. The arresting officer shall notify the accused as to when and where the commitment hearing is to be held. The offender who is not notified of the time and place of the commitment hearing, before the hearing, shall be released.”
The accused has the right to be represented by counsel at his committal hearing. State v. Houston, 234 Ga. 721 (218 SE2d 13) (1975). A common practice in this State is that when the accused is brought before the committing officer as required by Code Ann. § 27-210, counsel is appointed at that time if the accused is indigent. A “reasonable time shall be given to the defendant or prosecutor for the preparation of his case.” Code Ann. § 27-403 (pertaining to courts of inquiry and proceedings therein). (Emphasis supplied.) To require a committal hearing within 72 hours of an arrest would often be unfair to both the defendant and the prosecutor. Therefore, the hearing may be “postponed to a future day at the instance of either party, or by the court. . . [and the accused] shall have the right to give bail for appearance at the hearing before said court of inquiry, [if] the offense is bailable under the authority of said court.” Id. (Emphasis supplied.)
“The Act of 1956 [Code Ann. § 27-210] requires the officer making an arrest under a warrant to present the person arrested before a committing officer within 72 hours after arrest, and to notify the accused as to when and where the committal hearing is to be held. This Act does not provide that the committing magistrate shall have a hearing within 72 hours after the arrest.” Dodson v. Grimes, 220 Ga. 269 (1) (138 SE2d 311) (1964). (Emphasis supplied.) Accord, Tarpkin v. State, 236 Ga. 67 (1) (222 SE2d 364) (1976); Beavers v. State, 132 *332Ga. App. 94 (5) (207 SE2d 550) (1974); Whitfield v. State, 115 Ga. App. 231 (1) (154 SE2d 294) (1967).
(5) The defendant sought to introduce results of a crime lab report regarding a blood alcohol test of the victim’s blood. Of course, this test and the report were made at a time subsequent to the conduct under investigation.
In face of an objection that the report violated the rule against hearsay, the defendant asserts that the report is admissible, not to prove the truth of the matter asserted therein, but to explain her conduct and the conduct of the deceased. Code Ann. § 38-302.
The limited theory of admissibility of hearsay under Code Ann. § 38-302 is there are circumstances in which statements made (or reports given) to one who is later a witness, result in that witness taking certain action or engaging in certain conduct. A classic example is where a police officer receives a telephone call asking for help at a given residence. The fact of the receipt of the call explains the officer’s conduct in going to the residence in question. The truth of what may have been said in the phone conversation is not important with regard to the limited function of explaining why the officer went to the residence.
In the case at hand there is simply no action or conduct of either the victim or defendant which resulted from the report. The report cannot explain conduct resulting from the report having been made. Rather, the report, if its contents be true, may go to explain conduct preceding the existence of the report. If the victim had a .44 percent blood alcohol level at the time of his death, surely his conduct and the reactions to that conduct by the defendant are affected by this circumstance and to some degree explained thereby. But, that all turns on the truth of the hearsay statement and not upon a response to the hearsay statement.
I concur fully in the remaining divisions of the majority opinion.