concurring. I concur in the syllabus, the judgment, and am in basic agreement with the opinion. However, I believe that the judgment of affirmance should be based also on an additional reason.
Here, so far as is shown by the record, the first specific claim as to invalidity of the search warrant on the basis of an inadequate affidavit was made in the Court of Appeals.
"While a motion to suppress “any evidence seized” was filed by defense counsel on September 21, 1967, in advance of trial, the motion made no reference to or claim of invalidity of a search warrant. An examination of the record of the hearing of October 11,1967, at which time the motion to suppress was overruled, indicates that the hearing was concerned primarily with the ruling of the court on a motion for a second amended bill of particulars. The only reference to the motion to suppress comprises less than a full page in the supplemental bill of exceptions. No reference is made therein to the warrant or to the affidavit. Having made its rulings as to the bill of particulars, the court inquired of counsel for defendant as to whether “you wish to submit your brief on the question of suppression of evidence?” Counsel responded, “I believe, your Hon- or, that if the court is in a position to rule right now, I will go along with that.” Thereupon, the court announced its order overruling the motion.
There is nothing in the record to show that at or prior to the order of the court of October 11, 1967, overruling the motion to suppress, the search warrant or the affidavit was ever presented to the court. The search warrant appears in the record at only one place; when during trial it was employed by defense counsel in his cross-examination of a police officer; not as a basis for the exclusion of evidence, but as a vehicle for testing or attacking the credibility of the particular witness.
The physical evidence, the admissibility of which is now complained of, actually was admitted in evidence “by consent of counsel.”
*46Even the motion for new trial made no complaint relative to the admissibility of such evidence. The only complaints made therein were as to the claims that “the prosecuting attorney continuously made improper and derogatory references to the appearance of the defendant; to the appearance of defendant’s friends; to their manners and morals; for the sole purpose of inflaming the jury against the defendant,” and as to “errors at law occurring at the trial, in this, to wit: (a) The verdict was contrary to law, (b) the verdict was contrary to the manifest weight of the evidence.”
Under this state of the record, there is no showing that the trial court was even requested to pass on the specific claim of invalidity of the search warrant as a basis for the exclusion of evidence. To the contrary, during trial such evidence was admitted by agreement. In my opinion, a change of defense counsel after trial and during appeal cannot have the effect of erasing the agreement or of permitting such a claim to be raised for the first time in an appellate court. In this connection no claim is advanced herein that prior counsel was other than highly competent and experienced.
O’Neill, O. J., and Herbert, J., concur, also, in the foregoing concurring opinion.