Simpson v. State

Deen, Presiding Judge.

1. The affidavit in support of the application for search warrant was sworn to on November 26,1980, and attests that during that week the affiant received information from the informant “that cocaine and Quaaludes are presently stored at the residence belonging to” the defendant and her husband. This is a sufficient factual time averment to prevent the sustaining of a motion to suppress evidence. It is not necessary that the precise date of the act be given “but it should appear from the facts that the occurrence should be so near in point of time to the making of the affidavit and the execution of the search warrant as to create a reasonable belief that the same conditions described in the affidavit still prevailed at the time of the issuance of the warrant.” Fowler v. State, 121 Ga. App. 22, 23 (172 SE2d 447) (1970). See also Johnston v. State, 227 Ga. 387 (181 SE2d 42) (1971), stating that it is sufficient for the purpose of showing what the informant actually said to make a fair statement of what was told the officer. So far as underlying circumstances are concerned, the affiant here also quoted the informant as stating he had personally observed large quantities of other stated drugs on the premises on several different occasions, and that the reliability of the informant had been established from previous tips leading to the arrest of at least three other persons. He then testified that he was questioned by the Recorder’s Court judge before whom the warrant was sought as to the reliability of the informant and that he gave him several incidents in which the informer had been previously involved. A magistrate may consider oral testimony as well as the affidavit in issuing the warrant. Hawkins v. State, 130 Ga. App. 426 (203 SE2d 622) (1973). There was no cross examination eliciting the oral testimony before the magistrate with greater particularity, and we cannot say that it was inadequate. In the final analysis “it is the magistrate who must determine whether the total amounts to probable cause.” Dugan v. State, 130 Ga. App. 527, 530 (203 SE2d 722) (1974).

2. At the close of the state’s concluding argument, defendant’s counsel moved for a mistrial on the basis of prejudicial statements not based on evidence. The take-down of the argument runs to over 30 pages. We have considered eight phrases or sentences argued in the brief as error, only three of which were objected to at the trial. These, briefly, were a comparison of drugs to snake’s venom, “comments as to this leading to this, that and murder” and a statement that the search warrant had on it the names of both the defendant and her coindictee husband. The case was well and thoroughly tried, and these statements, even if close to the edge, do not in context warrant the grant of a new trial.

3. The trial judge charged Code § 26-604: “A person of sound mind and discretion is presumed to intend the natural and probable consequences of his acts, but the presumption may be rebutted.” A charge in this language is not burden shifting. Gatlin v. State, 236 Ga. 707 (6) (225 SE2d 224) (1976). The court further instructed the jurors that intent is a jury question and may be shown in many ways, inferred from the proven circumstances, or by acts and conduct, or presumed when it is the natural and necessary consequence of the act. This language is somewhat analogous to Code § 26-605. Where it clearly informs the jury that the question of intent is for them to decide, no reversible error appears. Whisenhunt v. State, 152 Ga. App. 829 (264 SE2d 271) (1979).

Decided July 9, 1981

Stephen A. Kermish, for appellant.

Lewis R. Slaton, District Attorney, Joseph J. Drolet, Benjamin H. Oehlert III, Jack E. Mallard, Assistant District Attorneys, for appellee.

4. A police officer testified that during the summer he received information about the defendant and her husband which led to surveillance of their residence from that time until they obtained the warrant which authorized the Thanksgiving Day search. Such testimony, although hearsay, is admissible to explain conduct. Code § 38-302.

Judgment affirmed.

Banke and Carley, JJ., concur specially.