General Consideration

Section does not deny equal protection. - This section applied to all persons alike, and hence, does not deny equal protection to anyone. Burke v. State, 205 Ga. 656 , 54 S.E.2d 350 (1949).

Section does not deny due process. - Even though a conviction for crime, procured by perjured evidence and known to be such by the state's prosecuting attorneys, amounts to a denial of due process of law, yet this section, which authorized a new trial when a conviction was based upon perjury and requires that proof of such perjury be made by a judgment of conviction, was not unconstitutional in that the conviction denied due process and equal protection of the law. Chatterton v. State, 221 Ga. 424 , 144 S.E.2d 726 (1965), cert. denied, 384 U.S. 1015, 86 S. Ct. 1964 , 16 L. Ed. 2 d 1036 (1966).

Section shows how to prove perjury and requires that judgment be set aside. - This section not only required the setting aside of a judgment procured by perjured testimony, but prescribed the evidence by which the fact of perjury may be proved, thus affording due process. Burke v. State, 205 Ga. 656 , 54 S.E.2d 350 (1949).

Former Code 1933, § 110-706 (see O.C.G.A. § 17-1-4 ) was but the exercise of the sovereign right of the state to fix rules of evidence and was in harmony with former Code 1933, § 38-101 (see now O.C.G.A. § 24-1-1 ). Burke v. State, 205 Ga. 656 , 54 S.E.2d 350 (1949).

Judgment overturned only if rights injured. - "Any judgment, verdict, rule, or order of court" refers only to those judgments or orders which go directly in support or defeat of the rights of the parties injuriously affected thereby. Price v. Cobb, 63 Ga. App. 694 , 11 S.E.2d 822 (1940).

Conviction based on perjured testimony of which prosecutor had knowledge. - When it is shown and not denied that a conviction was procured by perjured testimony, which testimony the state's prosecuting attorney knew to be perjured at the time the testimony was introduced, due process as guaranteed by U.S. Const., amend. 14 is denied, regardless of whether such testimony is merely impeaching in character or has probative force. Burke v. State, 205 Ga. 656 , 54 S.E. 350 (1949).

Witnesses are not judges of truth of testimony. - Witnesses themselves, whoever the witnesses may be, are not the legal judges of the truth of testimony delivered on the original trial, or on an extraordinary motion for a new trial, even though the testimony in controversy is the witnesses' own testimony and was contradictory on two occasions. The laws of the land have put this responsibility upon the judges and the courts, and have laid down certain rules which judges and the courts are to follow in determining this matter. Moore v. State, 59 Ga. App. 456 , 1 S.E.2d 230 (1939).

When there was no allegation of indictment and conviction of any witnesses who allegedly testified falsely, the trial court did not err in dismissing the defendant's claim seeking to set aside the judgment against the defendant. Sun v. Bush, 179 Ga. App. 140 , 345 S.E.2d 873 (1986).

Grounds for setting judgment aside generally. - Motion, whether the motion be construed as one to arrest or as one to set aside, did not show a proper cause for the relief sought because nowhere in the motion was it alleged that the judgment sought to be set aside or arrested was procured by accident, mistake, or fraud or through any defect not amendable appearing on the face of the record or pleadings or by perjury or any other irregularity. Chambless v. Oates Plumbing & Heating Co., 97 Ga. App. 80 , 102 S.E.2d 83 (1958).

Judgment may be set aside even when defect not apparent on record. - This section provides clear recognition of the right to set aside a judgment for a defect not apparent on the record. Ford v. Clark, 129 Ga. 292 , 58 S.E. 818 (1907); Lyons v. State, 7 Ga. App. 50 , 66 S.E. 149 (1909).

Successful party's admissions may be grounds to set aside. - A new trial may be granted for newly discovered evidence of material admissions of the successful party, which is not cumulative to other evidence offered at the trial. Evidence of admissions made by the successful party after the trial, or subsequent declarations inconsistent with that party's testimony on the trial, may be ground for setting aside the verdict, at least in the interest of justice. Perry v. Hammock, 75 Ga. App. 171 , 42 S.E.2d 651 (1947).

Fraud must be extrinsic, not just fraud in procuring judgment. - Frauds for which the court may set aside a former judgment between the same parties are limited to matters which are extrinsic and collateral to the issue tried in the former case, and do not include fraud in procuring a judgment by false testimony unless it is shown, among other things, that the witness has been convicted of perjury. Elliott v. Marshall, 182 Ga. 513 , 185 S.E. 831 (1936).

Cited in J.S. Scholfield's Sons Co. v. Vaughn, 40 Ga. App. 568 , 150 S.E. 569 (1929); Swords v. Roach, 175 Ga. 774 , 166 S.E. 185 (1932); Bird v. Smith, 186 Ga. 301 , 197 S.E. 642 (1938); Young v. Young, 188 Ga. 29 , 2 S.E.2d 622 (1939); Haygood v. Haygood, 190 Ga. 445 , 9 S.E.2d 834 (1940); Bonner v. State, 63 Ga. App. 464 , 11 S.E.2d 431 (1940); Thompson v. State, 67 Ga. App. 240 , 19 S.E.2d 777 (1942); Burke v. State, 205 Ga. 520 , 54 S.E.2d 348 (1949); Armstrong v. Armstrong, 206 Ga. 540 , 57 S.E.2d 668 (1950); Stembridge v. Georgia, 343 U.S. 541, 72 S. Ct. 834 , 96 L. Ed. 1130 (1952); Harper v. Mayes, 210 Ga. 183 , 78 S.E.2d 490 (1953); Self v. State, 108 Ga. App. 201 , 132 S.E.2d 548 (1963); Farmer v. State, 223 Ga. 364 , 155 S.E.2d 14 (1967); Bowen v. State, 144 Ga. App. 329 , 241 S.E.2d 431 (1977); Arnold v. State, 163 Ga. App. 10 , 293 S.E.2d 501 (1982); John v. State, 282 Ga. 792 , 653 S.E.2d 435 (2007).

Perjury Conviction

Section requires perjury conviction as purest proof. - This section required evidence which was convincing and which came from the purest source, to wit, a conviction for perjury. Burke v. State, 205 Ga. 656 , 54 S.E.2d 350 (1949).

In order not to burden court with choice between contradictory statements. - This section sought the purest source from which proof of perjury could be obtained. It recognized that when one and the same person, speaking under the solemnity of an oath, testified to a state of facts and subsequently, speaking under the solemnity of an oath, gave testimony which completely contradict that previous testimony and assert that the person committed perjury, the court, seeking the discovery of the truth, ought not to be called upon to say whether or not one of such statements is enough reliable evidence to authorize disbelief of the other. Burke v. State, 205 Ga. 656 , 54 S.E.2d 350 (1949).

Verdict not set aside without perjury conviction. - Verdict will not be set aside because of the false testimony of a witness unless and until the witness has been convicted of perjury. Stephens v. Pickering, 192 Ga. 199 , 15 S.E.2d 202 (1941); Parsons v. Georgia Power Co., 67 Ga. App. 517 , 21 S.E.2d 257 (1942); Chandler v. Chandler, 107 Ga. App. 124 , 129 S.E.2d 370 (1962); Marshall v. Russell, 222 Ga. 490 , 150 S.E.2d 667 (1966), cert. denied, 386 U.S. 911, 87 S. Ct. 857 , 17 L. Ed. 2 d 783 (1967); Day v. State, 242 Ga. App. 899 , 531 S.E.2d 781 (2000).

New trial was not warranted by the fact that a witness executed an affidavit stating that the witness lied when the witness said the defendant admitted to the witness that the defendant killed the victim since there was no evidence that the witness was convicted of perjury or that the defendant's conviction could not have been obtained without the witness's testimony. Ashley v. State, 263 Ga. 820 , 439 S.E.2d 914 (1994).

Witness recants under oath. - Evidence that one of the state's witnesses, since the trial, has made declarations, even though under oath, that the witness's testimony given upon the trial was false, is not cause for a new trial. Hall v. State, 117 Ga. 263 , 43 S.E. 718 (1903); Clark v. State, 117 Ga. 254 , 43 S.E. 853 (1903); Jordan v. State, 124 Ga. 417 , 52 S.E. 768 (1905); Hinsman v. State, 14 Ga. App. 481 , 81 S.E. 367 (1914); Smarr v. Kerlin, 21 Ga. App. 813 , 95 S.E. 306 (1918).

Recanting witness is sole witness. - Perjury of a witness is not a ground which requires the grant of a new trial unless it is made to appear that the witness has been duly convicted thereof, even though the witness who later declares the witness's testimony was false was the sole witness against the defendant. Morrow v. State, 36 Ga. App. 217 , 136 S.E. 92 (1926); Moore v. State, 59 Ga. App. 456 , 1 S.E.2d 230 (1939); Thompson v. State, 84 Ga. App. 419 , 65 S.E.2d 925 (1951).

Perjury conviction not sufficient justification when judgment obtainable without perjured evidence. - Conviction of a perjured witness is not itself sufficient to justify a court in setting aside a verdict and judgment in a case in which the witness testified, unless the verdict or judgment could not have been obtained and entered without the evidence of such perjured person. Richardson v. Roberts, 25 Ga. 671 (1858); Munro v. Moody & Fry, 78 Ga. 127 , 2 S.E. 688 (1886); Gant v. State, 115 Ga. 205 , 41 S.E. 698 (1902); Thomason v. Thompson, 129 Ga. 440 , 59 S.E. 236 , 26 L.R.A. (n.s.) 536 (1907); Morgan v. State, 16 Ga. App. 559 , 85 S.E. 827 (1915); Massie v. State, 24 Ga. App. 548 , 101 S.E. 703 (1919); Tanner v. Wilson, 58 Ga. App. 229 , 198 S.E. 77 (1938); Aycock v. State, 188 Ga. 551 , 4 S.E.2d 221 (1939); Stephens v. Pickering, 192 Ga. 199 , 15 S.E.2d 202 (1941).

Defendant's convictions were not obtained by the use of perjured testimony because there was no showing that any perjury actually occurred or that the witness was ever charged with or convicted of perjury; even assuming that the witness committed perjury, the guilty verdicts and consequent judgments could have been obtained without such evidence because there was testimony from other witnesses at the crime scene portraying the defendant's unjustified shooting of the victim. Nations v. State, 290 Ga. 39 , 717 S.E.2d 634 (2011).

Perjured testimony as a turning point in the minds of the jurors. - When the verdict could have been obtained without the evidence of the perjured witness, the appellate court is without power to reverse the trial court which denied the motion for new trial, even though the testimony of the perjured witness may have constituted the turning point in the minds of the jurors bringing about the conviction. Harris v. State, 99 Ga. App. 717 , 109 S.E.2d 912 (1959).

Court of equity will not set aside such judgment based on perjured testimony. - Court of equity will not set aside a judgment, although obtained by willful and corrupt perjury, unless it appears that the perjurer has been convicted of such perjury, and unless it appears that a judgment could not have been rendered without the perjured testimony. Hutchings v. Roquemore, 171 Ga. 359 , 155 S.E. 675 (1930); Elliott v. Marshall, 182 Ga. 513 , 185 S.E. 831 (1936).

Grant of new trial is in judge's discretion. - Fact that a witness for the prevailing party has been afterwards convicted of perjury in respect to testimony given in the trial of the case will not absolutely require the grant of a new trial or a setting aside of the verdict rendered unless it also appears that such verdict could not have been rendered or returned except for such perjured testimony. The fact, however, that the testimony of such witness does not require, as a matter of law, the grant of a new trial will not prevent the trial judge in using judicial discretion from granting such a motion although the judge is not required by law so to do. Geo. A. Hormel & Co. v. Ramsey, 62 Ga. App. 343 , 7 S.E.2d 789 (1940).

Not error to refuse to consider perjury evidence without conviction. - No verdict or judgment may be set aside on the grounds of corrupt and willful perjury unless it appears to the court that the person charged with such perjury has been thereof duly convicted. Consequently, there is no error when, on motion for new trial, the trial court refuses to consider any evidence of perjury which would not comply with this section. Mitchell v. State, 120 Ga. App. 447 , 170 S.E.2d 765 (1969).

Section may help defendant under certain phases of case. - This section, under certain phases of a case, might operate in favor of a defendant, for irrespective of what the trial judge might think as to whether a new trial should be granted on an extraordinary motion, if it appears that the verdict was entered up on consequence of corrupt and willful perjury, and the persons charged with such perjury have been duly convicted thereof, the verdict should be set aside, unless it appears to the court that the verdict or judgment could have been obtained and entered up without the evidence of such perjured person or persons. Moore v. State, 59 Ga. App. 456 , 1 S.E.2d 230 (1939).

Motions

Essential elements of affidavit of illegality. - In order to support an affidavit of illegality based on perjury, two things must appear: (1) there must have been a conviction of perjury; and (2) it must appear that the judgment could not have been obtained without this perjured evidence. Lewis v. Wall, 70 Ga. 646 (1883).

Essential elements of petition to have verdict set aside. - Petition asking that a verdict and decree be set aside because the verdict and decree were rendered on the perjured testimony of a named witness does not set forth a cause of action for that reason when the petition fails to allege that the witness has been duly convicted of perjury with respect to such testimony and that the verdict and decree were based on that testimony alone. Hubbard v. Whatley, 200 Ga. 751 , 38 S.E.2d 738 (1946); Day v. Day, 210 Ga. 454 , 81 S.E.2d 6 (1954).

Motion in arrest of judgment must allege grounds. - If nowhere in the motion for arrest of judgment it is alleged that the judgment sought to be arrested was procured by accident, mistake, or fraud, through any defect not amendable appearing on the face of the record or pleadings, by perjury, or any other irregularity, the motion is without merit. Stefanick v. Ouellette, 97 Ga. App. 644 , 104 S.E.2d 156 (1958).

When motion to vacate fails. - Motion to vacate, presented to the judge at the trial term, wholly fails to meet the requirements of a proceeding to set aside a judgment when it is not addressed to some unamendable defect appearing on the face of the record, as is required of a motion in arrest of judgment and of a statutory motion to set aside, nor if it is founded upon a charge of perjury, and does not seek relief against a judgment irregularly or improperly obtained. East Side Lumber & Coal Co. v. Barfield, 193 Ga. 273 , 18 S.E.2d 492 (1942).

Defendant was not entitled to have the defendant's convictions set aside due to alleged perjured testimony as the defendant made no showing any perjury actually occurred. Coggins v. State, 293 Ga. 864 , 750 S.E.2d 331 (2013).

General Consideration

Section abrogates rule at common law. - At common law, jurisdiction attached in the county where death occurred, but by this section jurisdiction attached in the county where the mortal blow was given. Roach v. State, 34 Ga. 78 (1864).

Section does not violate due process. - O.C.G.A. § 17-2-2 is not unconstitutionally vague or indefinite so as to violate state and federal concepts of due process. Rather, the statute adequately provides a mechanism to carry into effect the mandate of the state's constitution that criminal trials be held in the county in which the crime was committed. Adsitt v. State, 248 Ga. 237 , 282 S.E.2d 305 (1981).

Constitutional requirement that case be tried where crime committed not violated. - O.C.G.A. § 17-2-2 does not conflict with state constitutional requirement that all criminal cases be tried in the county where the crime was committed. Miller v. State, 174 Ga. App. 42 , 329 S.E.2d 252 (1985).

Subsection (b) of O.C.G.A. § 17-2-2 does not violate Ga. Const. 1976, Art. VI, Sec. XIV, Para. VI (Ga. Const. 1983, Art. VI, Sec. II, Para. VI), providing that criminal trials be held in the county in which the crime was committed. Adsitt v. State, 248 Ga. 237 , 282 S.E.2d 305 (1981).

Under Ga. Const. 1983, Art. VI, Sec. II, Para. VI and O.C.G.A. § 17-2-2 , venue in all criminal cases must be laid in the county in which the crime was allegedly committed. Walker v. State, 258 Ga. App. 354 , 574 S.E.2d 317 (2002).

Purpose of O.C.G.A. § 17-2-2 is to provide for establishment of venue in situations where there is either some doubt as to which county was the scene of the crime or where the crime in fact occurred in more than one county. Its purpose is the same as O.C.G.A. § 16-8-11 . Bundren v. State, 247 Ga. 180 , 274 S.E.2d 455 (1981).

Section provides proper jurisdiction where location of crime unclear. - O.C.G.A. § 17-2-2 provides a mechanism by which the mandate of Ga. Const. 1976, Art. VI, Sec. XIV, Para. VI (Ga. Const. 1983, Art. VI, Sec. II, Para. VI) can be carried out when the place in which the crime is committed cannot be determined with certainty. Bundren v. State, 247 Ga. 180 , 274 S.E.2d 455 (1981).

Under O.C.G.A. § 16-13-30(j)(1), it was unlawful for any person to possess marijuana, and since the marijuana was found in defendant's pocket when the defendant was arrested, and defendant was observed traveling in Newton County before the defendant's arrest in Rockdale County, the evidence was sufficient to conclude beyond a reasonable doubt that the defendant was guilty of possession of less than one ounce of marijuana since O.C.G.A. § 17-2-2(e) provided that if a crime was committed upon any vehicle traveling within the state and it cannot readily be determined in which county the crime was committed, the crime shall be considered as having been committed in any county in which the crime could have been committed through which the vehicle has traveled. Johnson v. State, 299 Ga. App. 706 , 683 S.E.2d 659 (2009).

Location of crime is clear. - For purposes of the aggravated battery - family violence offense and other offenses occurring in the parties' home, venue was proper in Athens-Clarke County because one of the responding officers of the Athens-Clarke County Police Department directly testified that the house where the defendant and the victim lived was located in Athens-Clarke County. Jones v. State, 329 Ga. App. 439 , 765 S.E.2d 639 (2014).

Because the victim's body was discovered in Douglas County, Georgia, and the county in which the cause of death was inflicted could not be determined, venue for the murder charge against both of the defendants was proper in Douglas County. Perera v. State, 295 Ga. 880 , 763 S.E.2d 687 (2014).

Effect on jurisdiction of change of venue. - Upon a change of venue in a criminal case, the county from which the case is transferred loses all jurisdiction to try the accused upon the indictment transferred at the time of the change, or any other indictment charging the same offense. Johnston v. State, 118 Ga. 310 , 45 S.E. 381 (1903).

Venue of crime is jurisdictional fact. - Venue must be proved as part of the general case. Dempsey v. State, 52 Ga. App. 35 , 182 S.E. 56 (1935); Wright v. State, 219 Ga. App. 119 , 464 S.E.2d 216 (1995).

After a defendant was granted a directed verdict on the basis that the state failed to prove venue in a criminal prosecution for driving under the influence per se, retrial was not barred under U.S. Const. amend. V and O.C.G.A. § 16-1-8 because, while venue had to be laid in the county in which the crime was allegedly committed under Ga. Const. 1983, Art. VI, Sec. II, Para. VI and O.C.G.A. § 17-2-2 and venue was a jurisdictional fact, failure to prove venue was a procedural error that implied nothing as to the defendant's guilt or innocence. Hudson v. State, 296 Ga. App. 758 , 675 S.E.2d 603 , cert. denied, No. S09C1163, 2009 Ga. LEXIS 413 (Ga. 2009); cert. denied, 558 U.S. 1076, 130 S. Ct. 799 , 175 L. Ed. 2 d 559 (2009).

Venue determination reserved for finder of fact. - Trial court erred by making a per se determination of venue and granting the defendant's motion to transfer the case to a different county within the response to the defendant's motion to suppress because a determination of venue was reserved for the finder of fact at trial. State v. Hasson, 334 Ga. App. 1 , 778 S.E.2d 15 (2015).

Criminal defendant cannot require bill of exceptions when venue change denied. - Defendant in a criminal case is not entitled to a direct bill of exceptions (see O.C.G.A. §§ 5-6-49 , 5-6-50 ) to a judgment denying a motion for change of venue on the ground that the defendant cannot obtain a fair trial in the county where the case is then pending. Hubbard v. State, 208 Ga. 472 , 67 S.E.2d 562 (1951).

Place of occurrence of homicide. - Use of O.C.G.A. § 17-2-2(h) to determine venue in a homicide case is not precluded by § 17-2-2(c) . Felker v. State, 252 Ga. 351 , 314 S.E.2d 621 , cert. denied, 469 U.S. 873, 105 S. Ct. 229 , 83 L. Ed. 2 d 158 (1984).

Prosecution venue for enticing child for immoral purposes. - Venue lies in the county where the child was first enticed. Cornelius v. State, 213 Ga. App. 766 , 445 S.E.2d 800 (1994).

Venue in cases of kidnapping. - Venue is proper in the county where the victim was seized. Harris v. State, 165 Ga. App. 249 , 299 S.E.2d 924 (1983).

Kidnapping is not a continuing offense, and the crime is consummated when the victim is seized; thus, the prosecution in an attempt to prove kidnapping failed to prove venue in a state county when the evidence showed that the victim was seized in another state. Miller v. State, 174 Ga. App. 42 , 329 S.E.2d 252 (1985); Jordan v. State, 242 Ga. App. 408 , 530 S.E.2d 42 (2000), overruled on other grounds, Shields v. State, 276 Ga. 669 , 581 S.E.2d 536 (2003).

Because the evidence was sufficient to support a finding that a kidnapping might have been committed in Douglas County, there was no ground for reversal. A police officer testified that a bar and all the buildings surrounding the bar, from which a victim was abducted, were in Douglas County, although the bar was situated near the county line with Cobb County; while the victim was driven to an ATM in Cobb County, there was no evidence of the route taken between the bar and that ATM. Epps v. State, 297 Ga. App. 66 , 676 S.E.2d 791 (2009).

Because a defendant forced the victim to drive to an abandoned house and then drove the victim through other neighborhoods before forcing the victim out of the car and refusing to return the victim's personal belongings, the defendant's convictions for kidnapping and robbery by intimidation under O.C.G.A. §§ 16-5-40(a) and 16-8-40 did not merge; pursuant to O.C.G.A. § 17-2-2(e) , venue was proper in any county through which the vehicle traveled. Aldridge v. State, 310 Ga. App. 502 , 713 S.E.2d 682 (2011).

Venue in RICO cases governed by RICO venue provision. - Venue for charges under the Georgia Racketeer and Corrupt Organizations Act (RICO), O.C.G.A. § 16-14-1 et seq., was proper against one of the three defendants in Cobb County pursuant to former O.C.G.A. § 16-14-1 1, even though the defendant was acquitted of a conspiracy charge and the defendant personally committed no acts in Cobb County. Lowery v. State, Ga. App. , 815 S.E.2d 625 (2018).

Venue in cases of Medicaid fraud. - Venue was proper in the county where a false report is submitted and processed in an attempt to fraudulently obtain medical assistance. Culver v. State, 254 Ga. App. 297 , 562 S.E.2d 201 (2002).

In a Medicaid fraud case committed by a fraudulent scheme or device under O.C.G.A. § 49-4-146.1(b)(1)(C) of the Georgia Medical Assistance Act, O.C.G.A. § 49-4-140 et seq., pursuant to Ga. Const. 1983, Art. VI, Sec. II, Para. VI and O.C.G.A. § 17-2-2(a) , venue is proper in any county where an act was committed in furtherance of the fraudulent transaction. Because defendants committed acts in furtherance of the fraud in counties in which the defendants were tried and convicted, venue in those counties was proper and the appellate court improperly reversed the defendants' convictions. State v. Kell, 276 Ga. 423 , 577 S.E.2d 551 (2003).

Venue in robbery case. - When the victim was given a ride by appellant at the Fort Gordon bus station, the victim was robbed in Augusta, which is in Richmond County, and the victim was let out about one mile from the Augusta airport, the evidence established beyond a reasonable doubt that the offense might have been committed in Richmond County, and is sufficient to show venue in Richmond County. Harper v. State, 172 Ga. App. 69 , 321 S.E.2d 805 (1984).

Court of appeals erred in reversing the defendant's conviction for armed robbery because the trial court properly declined to instruct the jury on the lesser included offense of theft by taking since there was no evidence that the included crime was committed in the county in which the defendant was being tried; although the state was unwilling to allow the defendant to waive venue or stipulate that what occurred was a theft by taking that happened entirely in Clayton County, the defendant was free to present evidence and argue to the jury that while the defendant was guilty of committing theft by taking in Clayton County, the defendant was not guilty of armed robbery in DeKalb County. But the defendant could not require the state to agree that the defendant committed theft by taking in Clayton County or require the trial court to instruct the jury on a lesser included offense over which the court lacked venue. State v. Dixon, 286 Ga. 706 , 691 S.E.2d 207 (2010).

Venue in a conspiracy case. - Venue is properly laid in the county in which the substantive offense is committed, even though the defendant may never have entered that county. Osborn v. State, 161 Ga. App. 132 , 291 S.E.2d 22 (1982).

County where vehicle first spotted is county of venue. - County where a defendant was arrested was not the proper venue since an officer spotted the defendant driving in another county and followed the defendant across the county line to make the arrest; the county in which the defendant was first driving was the proper venue. Pippins v. State, 204 Ga. App. 318 , 419 S.E.2d 28 , cert. denied, 204 Ga. App. 922 , 419 S.E.2d 28 (1992).

With respect to the offenses relating to or arising out of the police chase, including the offense of fleeing and attempting to elude police officers, venue was proper in Athens-Clarke County because, although the defendant drove through other counties, the police chase began in Athens-Clarke County, and there was testimony that the defendant's vehicle traveled in Athens-Clarke County during the course of the police chase. Jones v. State, 329 Ga. App. 439 , 765 S.E.2d 639 (2014).

Venue for crime in vehicle anywhere vehicle traverses. - When a crime is committed in a vehicle traveling within this state, it may be considered to have been committed in any county traversed. Polk v. State, 142 Ga. App. 785 , 236 S.E.2d 926 (1977).

When the crime occurred in a car traveling across several counties and continued as the car headed "back into town," and the evidence showed that the crime might have been committed in the forum county, venue was appropriate in that county under O.C.G.A. § 17-2-2 (e) and (h). Hendrix v. State, 242 Ga. App. 678 , 530 S.E.2d 804 (2000).

Venue was proper in the county where the defendant committed several moving violations, although an arrest was effectuated in a neighboring county due to the officer's hot pursuit; the officer had legal authority to initiate pursuit and arrest, and the arrest was not invalid merely because the officer was outside the officer's jurisdiction. Page v. State, 250 Ga. App. 795 , 553 S.E.2d 176 (2001).

When the defendant committed the offense in the defendant's vehicle while taking the victim to a car repair shop, and all of the roads to the repair shop were in the county where the defendant's trial occurred, under O.C.G.A. § 17-2-2(e) , the trial court had jurisdiction to try the defendant as the defendant could have been tried in any county through which defendant's vehicle traveled. Gearin v. State, 255 Ga. App. 329 , 565 S.E.2d 540 (2002).

Evidence of venue in fleeing and eluding case. - In a fleeing and eluding case under O.C.G.A. § 40-6-395 , the evidence was sufficient to establish venue as required by Ga. Const. 1983, Art. VI, Sec. II, Para. VI and O.C.G.A. § 17-2-2(a) , based on evidence that the chase originated in the county and continued there, including an eyewitness's testimony, dash cam footage, and a map. Payne v. State, 338 Ga. App. 677 , 791 S.E.2d 451 (2016).

Venue for receiving stolen goods in county received. - Venue of a charge of receiving stolen goods, knowing the goods to be stolen, is the county where such goods are received. Dempsey v. State, 52 Ga. App. 35 , 182 S.E. 56 (1935).

Venue for the crime of making a false statement. - Venue was in the county where the defendant signed a form falsely attesting to the use being made of government property, not the location of the office to which the form was sent. Spray v. State, 223 Ga. App. 154 , 476 S.E.2d 878 (1996).

Trial court committed reversible error as a result of convicting a defendant for making false statements to a state or local government agency or department in a case wherein the state failed to prove venue in the jurisdiction that the defendant was tried. The state was obligated to prove that the defendant's false statements to Federal Bureau of Investigation officers occurred in Fulton County wherein the defendant was tried; thus, the defendant's conviction required reversal. Tesler v. State, 295 Ga. App. 569 , 672 S.E.2d 522 (2009), cert. denied, No. S09C0810, 2009 Ga. LEXIS 334 (Ga. 2009).

No venue when police trick defendant into county for venue. - Police officers' activities in maneuvering appellant into a county for the sole purpose of obtaining venue constituted a subterfuge and impermissibly conferred apparent venue over the defendant in that county. McCarty v. State, 152 Ga. App. 726 , 263 S.E.2d 700 (1979).

Venue when custody unlawfully retained. - When a parent lawfully removes the child from the state, but unlawfully retains custody out of state, the legislature intended that the victim's domicile, i.e., the custodial parent, should be the venue of any criminal prosecution. State v. Evans, 212 Ga. App. 415 , 442 S.E.2d 287 (1994).

Proving venue in cruelty to children case. - Trial court did not err in denying the defendant's motion for new trial because the state did not fail to prove venue beyond a reasonable doubt as to the counts of cruelty to children in the second degree for fracturing the second victim's ribs and cruelty to children in the first degree for fracturing the first victim's ribs and a leg because the evidence showed that the defendant and the children's mother moved with their children to an apartment in Clayton County in April 2009 and that they were the children's sole caretakers; that the victims' injuries were discovered in July 2009; and a doctor testified that the bone fractures had to have occurred at least one to two weeks in the past and at most a few months in the past. Freeman v. State, 333 Ga. App. 6 , 775 S.E.2d 258 (2015).

Venue in drug possession charge cases. - O.C.G.A. § 17-2-2(h) applies when a drug possession charge results from the detection of metabolites that can remain in a defendant's urine two to four days after the drug is ingested, and venue is appropriate in the county where the defendant is present immediately before being asked to provide the urine sample. Pruitt v. State, 264 Ga. App. 44 , 589 S.E.2d 864 (2003).

Venue is a question to be decided by the jury and the jury's decision will not be set aside as long as there is any evidence to support the decision. Jones v. State, 245 Ga. 592 , 266 S.E.2d 201 (1980); Davis v. State, 203 Ga. App. 106 , 416 S.E.2d 375 (1992).

Venue a jury question when no concrete evidence presented as to where rape committed. - When there is evidence that the victim was with the defendant in numerous counties, but there is no concrete evidence as to in which county she was raped and assaulted, the issue is properly submitted to the jury as to venue. Moss v. State, 160 Ga. App. 42 , 285 S.E.2d 776 (1981).

Jury instruction on venue in homicide cases. - Jury instruction in a murder case under O.C.G.A. § 17-2-2(c) , that, if it could not be determined where the cause of death was inflicted, it "shall be considered" that it was inflicted in the county where the body was discovered, did not impermissibly shift the burden of proof to the defendant. As a result, the following cases are disapproved: Napier v. State, 276 Ga. 769 (2), 583 S.E.2d 825 (2003), Owens v. State, 286 Ga. 821 , 827(3), 693 S.E.2d 490 (2010), and Owens v. McLaughlin, 733 F.3d 320, 327 (11th Cir. 2013). Shelton v. Lee, 299 Ga. 350 , 788 S.E.2d 369 (2016), cert. denied, 137 S. Ct. 1066 , 197 L. Ed. 2 d 187 (U.S. 2017).

Venue in violation of state ethics law. - When the defendants were indicted under O.C.G.A. § 21-5-9 for failing to file documents with the state ethics commission under O.C.G.A. § 21-5-34 , venue was in the county where the commission was exclusively located; the place fixed for performance of the required act fixed the situs of the alleged crime. McKinney v. State, 282 Ga. 230 , 647 S.E.2d 44 (2007).

Venue not relevant to motion to suppress. - Grant of the defendant's motion to suppress on the basis of venue was reversed because the state did not need to establish venue at the pretrial hearing on the defendant's motion to suppress as it was not relevant to the issues raised in the motion, which challenged the reasonable basis for the traffic stop or whether the resulting search of the defendant and the defendant's vehicle were supported by probable cause. State v. Wallace, 338 Ga. App. 611 , 791 S.E.2d 187 (2016).

Jury is not obliged to accept opinion evidence. - Jury may accept evidence from surveyors and reject opinion evidence of law enforcement officers relating to the location of a county line. Adsitt v. State, 248 Ga. 237 , 282 S.E.2d 305 (1981).

Special instructions. - When the case against the defendant is based upon the defendant's activities as a party or conspirator to the crime charged in the indictment and these activities took place in a county other than the one in which the prosecution is brought, a special instruction on venue is necessary to clarify the nature of the criminal activity for which the defendant is on trial. Osborn v. State, 161 Ga. App. 132 , 291 S.E.2d 22 (1982).

Failure to instruct on venue. - Although the trial court did not instruct the jury on venue, and neither party requested an instruction on venue, its complete charge on reasonable doubt, and instruction that the crimes as alleged in the indictment had to be proven beyond a reasonable doubt, when coupled with an indictment which specified that the crimes were committed in Fulton County, was sufficient such that the trial court's failure to instruct the jury on venue provided no basis for reversal. Watson v. State, 263 Ga. App. 95 , 587 S.E.2d 243 (2003).

Because the trial court properly instructed the jury that venue was a jurisdictional fact that had to be proven beyond a reasonable doubt as to each crime charged in the indictment, no reversible error resulted from the charge. Clark v. State, 283 Ga. 234 , 657 S.E.2d 872 (2008).

Jury instruction. - Supreme Court of Georgia has urged trial courts to give a separate charge on venue to encourage prosecutors to prove venue and to alert juries to the juries' specific role in determining venue, and also has recommended language to use in instructing the jury on venue; although the Court has encouraged the giving of the instruction, the Supreme Court has declined to reverse a conviction and require a new trial based on the trial court's failure to sua sponte instruct the jury on venue. Lanham v. State, 291 Ga. 625 , 732 S.E.2d 72 (2012).

Former jeopardy. - If a defendant is tried in one county in a court having jurisdiction of the offense, but the crime occurred in another county, no jeopardy attaches. Schiefelbein v. State, 258 Ga. 623 , 373 S.E.2d 354 (1988), cert. denied, 489 U.S. 1026, 109 S. Ct. 1156 , 103 L. Ed. 2 d 215 (1989).

Effect of judgment on determination of venue issue. - Litigation of the issue of venue in a second prosecution of defendant for a rape that allegedly occurred on a boundary lake was subject to collateral estoppel as defendant had been acquitted in an earlier proceeding at which the state had the opportunity to present evidence on the issue. Ganong v. State, 223 Ga. App. 163 , 477 S.E.2d 324 (1996).

Cited in Blackman v. State, 80 Ga. 785 , 7 S.E. 626 (1888); Woolfolk v. State, 85 Ga. 69 , 11 S.E. 814 (1890); Rawlins v. State, 124 Ga. 31 , 52 S.E. 1 (1905); Upton v. State, 229 Ga. 834 , 195 S.E.2d 21 (1972); Maddox v. State, 145 Ga. App. 363 , 243 S.E.2d 740 (1978); Taylor v. State, 154 Ga. App. 279 , 267 S.E.2d 891 (1980); Dabney v. State, 154 Ga. App. 355 , 268 S.E.2d 408 (1980); Bundren v. State, 155 Ga. App. 265 , 270 S.E.2d 807 (1980); Anderson v. State, 249 Ga. 132 , 287 S.E.2d 195 (1982); Kesler v. State, 249 Ga. 462 , 291 S.E.2d 497 (1982); Radford v. State, 251 Ga. 50 , 302 S.E.2d 555 (1983); Miller v. State, 169 Ga. App. 668 , 314 S.E.2d 684 (1984); Spivey v. State, 253 Ga. 187 , 319 S.E.2d 420 (1984); Thomas v. State, 255 Ga. 38 , 334 S.E.2d 675 (1985); Miller v. State, 174 Ga. App. 703 , 331 S.E.2d 616 (1985); Sypho v. State, 175 Ga. App. 833 , 334 S.E.2d 878 (1985); Amerson v. State, 177 Ga. App. 97 , 338 S.E.2d 528 (1985); Worth v. State, 179 Ga. App. 207 , 346 S.E.2d 82 (1986); Caviness v. State, 180 Ga. App. 792 , 350 S.E.2d 813 (1986); Robinson v. State, 182 Ga. App. 423 , 356 S.E.2d 55 (1987); Sanders v. State, 182 Ga. App. 581 , 356 S.E.2d 537 (1987); Taylor v. State, 183 Ga. App. 314 , 358 S.E.2d 845 (1987); Henderson v. State, 191 Ga. App. 275 , 381 S.E.2d 423 (1989); Head v. State, 191 Ga. App. 262 , 381 S.E.2d 519 (1989); White v. State, 193 Ga. App. 428 , 387 S.E.2d 921 (1989); Randall v. State, 195 Ga. App. 755 , 395 S.E.2d 2 (1990); Green v. State, 260 Ga. 625 , 398 S.E.2d 360 (1990); Melton v. State, 204 Ga. App. 103 , 418 S.E.2d 428 (1992); Dennis v. State, 263 Ga. 257 , 430 S.E.2d 742 (1993); McGarity v. State, 212 Ga. App. 17 , 440 S.E.2d 695 (1994); Weidmann v. State, 222 Ga. App. 796 , 476 S.E.2d 18 (1996); Turner v. State, 273 Ga. 340 , 541 S.E.2d 641 (2001); Hanson v. State, 275 Ga. 470 , 569 S.E.2d 513 (2002); Rivera v. State, 282 Ga. 355 , 647 S.E.2d 70 (2007); Rogers v. State, 298 Ga. App. 895 , 681 S.E.2d 693 (2009); Miller v. State, 289 Ga. 854 , 717 S.E.2d 179 (2011); Manhertz v. State, 317 Ga. App. 856 , 734 S.E.2d 406 (2012).

Proof of Venue

Court assumes county in evidence is county within state. - If a county is named in the evidence, the state will indulge the presumption that it is a county of this state, and if the name mentioned in the evidence is the county of the trial, the court will assume that the county at trial is the county in the evidence. Gibson v. State, 52 Ga. App. 297 , 183 S.E. 83 (1935).

Court would take judicial notice. - Court would take notice that named municipality was site of county wherein defendant was prosecuted and wholly within such county, and if all the evidence strongly tends to show that the crime was committed in the county where the trial was had, and if there is no evidence warranting even a bare conjecture that it was committed elsewhere, then venue is satisfactorily established. Hubbard v. State, 208 Ga. 472 , 67 S.E.2d 562 (1951).

Court could take judicial notice that a city was located wholly within the county in which the defendant was tried. Gilmer v. State, 234 Ga. App. 309 , 506 S.E.2d 452 (1998).

Testimony that crime committed in certain county proves committed within state. - On an indictment tried in Putnam County, testimony that the crime was committed in Putnam County is sufficient proof that the crime was committed in Putnam County, Georgia. Dennis v. State, 51 Ga. App. 538 , 180 S.E. 909 (1935).

Defendant was arrested for obstruction of a police officer for refusing to obey an officer's order to move the defendant's vehicle which was stopped on a public road. The officer's testimony that the road was located in Dawson County was sufficient to prove venue in Dawson County beyond a reasonable doubt. West v. State, 296 Ga. App. 58 , 673 S.E.2d 558 (2009).

Testimony that crime committed in certain county. - With regard to the defendant's murder conviction, the state established venue by proof beyond a reasonable doubt via testimony of the chief investigator, who used aerial photographs obtained from the tax assessor's office in Bryan County, Georgia, and identified the location of the residences of the defendant, the defendant's parents, the victim, and the place where the victim's body was found. Lanham v. State, 291 Ga. 625 , 732 S.E.2d 72 (2012).

Proof crime committed in municipality does not prove venue in state's county. - Proof that an offense was committed in a designated municipality is not of itself sufficient to show venue in any particular county of this state. Gibson v. State, 52 Ga. App. 297 , 183 S.E. 83 (1935).

Trial of defendant in the Atlanta Traffic Court, a city court which sits in the Fulton County portion of Atlanta, was improper, after the state proved that the alleged offense took place in the city of Atlanta but did not offer any proof that the offense occurred in Fulton County; the defendant is entitled to be tried in the county in which the offense was alleged to have occurred. Waller v. State, 231 Ga. App. 323 , 498 S.E.2d 362 (1998).

Venue in multi-county crime spree. - State failed to prove venue for armed robbery and hijacking a motor vehicle since the facts showed that the victim was forced at gunpoint into the victim's car in a parking lot in one county and then was ordered to drive into a second county (the place of trial) where the victim was taken from the car and shot; both offenses were complete in the first county, and neither O.C.G.A. § 16-8-11 nor O.C.G.A. § 17-2-2 were applicable to confer venue in the second county. Bradley v. State, 272 Ga. 740 , 533 S.E.2d 727 (2000).

Venue was proper in the county in which the victim's body was discovered because it could not be readily determined in which county the cause of death was inflicted. Shelton v. State, 279 Ga. 161 , 611 S.E.2d 11 (2005).

In general, criminal actions are tried in the county where the crime was committed; the victim's testimony that the defendant committed sexual assault offenses in Colquitt County, even though the defendant also committed some of the offenses in other counties, was sufficient to establish venue. Henry v. State, 274 Ga. App. 139 , 616 S.E.2d 883 (2005).

Officer's testimony that the officer turned on lights and sirens on a road in Walton County and the defendant, a juvenile, did not stop was sufficient for the juvenile court to have found venue proven beyond a reasonable doubt for the charge of attempting to elude a police officer, but there was not sufficient evidence as to venue on the remaining charges, as those charges occurred at various points along a span of at least six miles, during which the officers left the city limits. In the Interest of M. C., 345 Ga. App. 863 , 815 S.E.2d 194 (2018).

Venue demonstrable by circumstantial evidence. - Venue in a criminal case, like any other fact, may be shown by circumstantial as well as direct evidence. Shi v. State, 52 Ga. App. 358 , 183 S.E. 331 (1936); Hancock v. State, 196 Ga. 351 , 26 S.E.2d 760 (1943); Jones v. State, 245 Ga. 592 , 266 S.E.2d 201 (1980); McCord v. State, 248 Ga. 765 , 285 S.E.2d 724 (1982); Parrott v. State, 190 Ga. App. 784 , 380 S.E.2d 343 (1989).

Circumstantial, as well as direct evidence, may be used to establish venue. Levitt v. State, 201 Ga. App. 63 , 410 S.E.2d 170 (1991).

Evidence that the arresting officer worked for the county in which the offenses occurred and was on duty on the day the officer made the arrest was sufficient to support a finding that the offenses of which the defendant was accused occurred in the county in which the defendant was tried. Joiner v. State, 231 Ga. App. 61 , 497 S.E.2d 642 (1998), overruled on other grounds, Jones v. State, 272 Ga. 900 , 537 S.E.2d 80 (2000), overruling Perry v. State, 154 Ga. App. 559 , 269 S.E.2d 63 (1980); Mega v. State, 220 Ga. App. 481 , 469 S.E.2d 771 (1996); Calloway v. State, 227 Ga. App. 775 , 490 S.E.2d 521 (1997).

Although the prosecution did not introduce direct evidence which showed that the location of a robbery and murder was in the county where the defendant was tried, it did introduce evidence which showed that the crime occurred near a lounge that was in the county, and the jury was able to find proper venue by considering that evidence and the facts that the police officer who investigated the crime worked for the county and that the deceased's body was taken to the county's coroner for autopsy. Chapman v. State, 275 Ga. 314 , 565 S.E.2d 442 (2002).

Trial court properly found that venue existed in Jones County, Georgia as: (1) the last time the victim was seen alive, the victim was involved in an altercation with defendant at their Jones County home; and (2) if defendant did kill the victim during that altercation, the defendant killed the victim in a moment of passion, as the jury necessarily found, then the death of the victim at the victim's Jones County home was consistent with this finding. Glidewell v. State, 279 Ga. App. 114 , 630 S.E.2d 621 (2006), overruled on other grounds, Reynolds v. State, 285 Ga. 70 , 673 S.E.2d 854 (2009).

In a murder prosecution where the victim's body was never found, the evidence established that the defendant and the victim had left a ball park where they worked within five minutes of each other, that the victim's car was found abandoned at a gas station adjacent to the park, that a person whose voice characteristics matched the defendant's said on the telephone that the defendant took the victim at "the station," and that the park and the gas station were in DeKalb County was sufficient evidence to show beyond a reasonable doubt that the murder might have been committed in DeKalb County; thus, the proper trial venue under O.C.G.A. § 17-2-2(h) was proved to be in that county. Hinton v. State, 280 Ga. 811 , 631 S.E.2d 365 (2006).

In a child molestation case, venue in McIntosh County was proper; the victim testified that the crime occurred in the home of the victim's aunt, where the victim currently lived, and the aunt testified that she currently lived in McIntosh County. Flanders v. State, 285 Ga. App. 805 , 648 S.E.2d 97 (2007).

Sufficient evidence supported that venue was properly established in Bibb County, Georgia, with regard to the defendant's aggravated assault, kidnapping, and rape convictions because although the two women were not sure where the defendant had driven them, the testimony of the camper whom one victim had found upon escaping established venue in Bibb County and the second area where the other victim was raped was only three minutes from the first. Howard v. State, 340 Ga. App. 133 , 796 S.E.2d 757 (2017).

Evidence as to venue, though slight, may be sufficient. - Evidence may be sufficient when there is no conflicting evidence. Baker v. State, 55 Ga. App. 159 , 189 S.E. 364 (1937); Ellard v. State, 233 Ga. 640 , 212 S.E.2d 816 (1975); Rutledge v. State, 152 Ga. App. 755 , 264 S.E.2d 244 (1979); Jones v. State, 245 Ga. 592 , 266 S.E.2d 201 (1980); Arthur v. State, 154 Ga. App. 735 , 269 S.E.2d 887 (1980), cert. denied, 449 U.S. 1088, 101 S. Ct. 880 , 66 L. Ed. 2 d 815 (1981); Adcock v. State, 194 Ga. App. 627 , 391 S.E.2d 438 , aff'd, 260 Ga. 302 , 392 S.E.2d 886 (1990); Sawyer v. State, 217 Ga. App. 406 , 457 S.E.2d 685 (1995). But see Hanifa v. State, 269 Ga. 797 , 505 S.E.2d 731 (1998).

Venue must be established beyond a reasonable doubt. However, when the evidence is not conflicting and when no challenge to venue is raised at trial, slight evidence is sufficient to prove venue. Davis v. State, 203 Ga. App. 106 , 416 S.E.2d 375 (1992).

With regard to the defendant's murder conviction, sufficient evidence was submitted to support the conclusion that the cause of the victim's death was a beating involving blows to the head and while no direct evidence was presented establishing where the beating was committed, sufficient indirect or circumstantial evidence was presented from which the jury could conclude the victim was beaten at the pull-off on a road in Harris County, Georgia, where the victim was found. Bulloch v. State, 293 Ga. 179 , 744 S.E.2d 763 (2013).

When a criminal defendant pleads not guilty, he or she has challenged venue and the state will not be permitted to invoke the exception permitting the state to establish venue with mere slight evidence. Jones v. State, 272 Ga. 900 , 537 S.E.2d 80 (2000).

Venue proved where evidence indicates crime committed in trial county. - When all of the evidence introduced on the trial of a criminal case strongly and decidedly tended to show that the offense was committed in the county where the trial was had, and there was no evidence warranting even a bare conjecture that the crime was committed elsewhere, the venue was sufficiently proved. Roberson v. State, 69 Ga. App. 541 , 26 S.E.2d 142 (1943).

When the victim testified that the movant took a car from the victim at gunpoint in Chatham County, Georgia, a reasonable trier of fact was authorized to find beyond a reasonable doubt that the movant committed the crimes of armed robbery and possession of a firearm during the commission of a felony in Chatham County, making that county the appropriate venue for the movant's trial pursuant to Ga. Const. 1983, Art. VI, Sec. II, Para. VI and O.C.G.A. § 17-2-2(a) ; thus, the convictions and sentences were not void and the trial court properly dismissed, based on a lack of subject matter jurisdiction, the movant's post-conviction motion to vacate the convictions and sentences. Green v. State, 259 Ga. App. 195 , 575 S.E.2d 921 (2002).

Venue was proven by testimony that the DVD-player that the defendant was accused of shoplifting from a store would not have come up on a scanner if it had not come from the particular store. Walker v. State, 268 Ga. App. 669 , 602 S.E.2d 351 (2004).

Defendant's conviction for underaged drinking of an alcoholic beverage was upheld on appeal since the police officer smelled alcohol on the defendant's breath in the county wherein the defendant was arrested, which was enough to establish venue, pursuant to O.C.G.A. § 17-2-2(h) . Burchett v. State, 283 Ga. App. 271 , 641 S.E.2d 262 (2007).

With regard to a defendant's conviction for child molestation, the victim's testimony that the victim lived in a particular city, which was located in Spalding County, and that the incident occurred at another apartment, which the evidence revealed through the testimony was also located in that particular city, there was sufficient evidence to prove venue in Spalding County beyond a reasonable doubt. Mahone v. State, 293 Ga. App. 790 , 668 S.E.2d 303 (2008).

State did not fail to prove venue beyond a reasonable doubt because the proof was that the crime was committed in the County of Clayton; that the trial court was sitting in the County of Clayton and the State of Georgia was a fact known to the trial court from the court's own records and the public law, and when therefore it was proven that the crime was committed in the County of Clayton it was proven that the crime was committed in the county in which the trial court entertained jurisdiction over the crime. Gresham v. State, 289 Ga. 103 , 709 S.E.2d 780 (2011).

Since there was no clear evidence that the fatal injury was inflicted anywhere other than Harris County, where the victim was found, and where the victim died, the state sufficiently proved venue. Walton v. State, 293 Ga. 607 , 748 S.E.2d 866 (2013).

Proving venue in child molestation cases. - Statements by the victim of a child molestation that the defendant inserted a finger into the victim's private area and that the incident occurred in the bedroom of the victim's home, and a second statement that the incident occurred in the grandparent's house, where the child in fact lived, coupled with the fact that the grandparent's house was in the county where the defendant's trial was conducted, was sufficient to allow a rational juror to find beyond a reasonable doubt that the crime occurred in the county where the trial was held. Chalifoux v. State, 262 Ga. App. 895 , 587 S.E.2d 62 (2003).

State proved venue in Cobb County beyond a reasonable doubt, with direct and circumstantial evidence, which showed that the defendant committed aggravated sexual battery upon the child victim while traveling from the victim's home in Cobb County to a bus stop. Harris v. State, 279 Ga. App. 570 , 631 S.E.2d 772 (2006).

In a case where the defendant was convicted of aggravated child molestation and aggravated sodomy, there was sufficient evidence to establish venue under O.C.G.A. § 17-2-2(e) ; the evidence that the defendant, the defendant's parents, and the victim, who were traveling, stopped in Houston County, that the defendant entered the camper where the victim was sleeping, and that the defendant soon thereafter performed sex acts on the victim was sufficient to establish that the crimes could have been committed in Houston County. Boileau v. State, 285 Ga. App. 221 , 645 S.E.2d 577 (2007).

Even though the victim was unable to testify with precision as to which county the attack took place, such was not required in order to establish the proper venue as the evidence showed beyond a reasonable doubt that the rape and aggravated sexual battery might have been committed in Fulton County, this evidence was sufficient to establish Fulton County as the proper venue. Arnold v. State, 284 Ga. App. 598 , 645 S.E.2d 68 (2007).

Although the defendant argued that the state failed to prove venue beyond a reasonable doubt, pursuant to Ga. Const. 1983, Art. VI, Sec. II, Para. VI and O.C.G.A. § 17-2-2(a) generally, a criminal case had to be tried in the county in which the crime was committed. The state had the burden of proving venue, which the state could do using either direct or circumstantial evidence, and whether the evidence as to venue satisfied the reasonable-doubt standard was a question for the jury, and the state's decision will not be set aside if there is any evidence to support the decision; therefore, because in the defendant's case, the victim testified that the defendant molested the victim in their residence and that the residence was located in Grady County, Georgia, venue was established beyond a reasonable doubt. Bynum v. State, 300 Ga. App. 163 , 684 S.E.2d 330 (2009), cert. denied, No. S10C0225, 2010 Ga. LEXIS 300 (Ga. 2010).

Body found in county, although shooting site unconfirmed. - Even when the evidence as to where the fatal shot was fired was inconclusive, if the evidence that the body was found in a particular county in the state was not contradicted, the contention that venue was not proven was without merit. Aldridge v. State, 236 Ga. 773 , 225 S.E.2d 421 (1976).

Even though circumstances pointed to another county as the place of death, when no actual evidence of the murder was ever found in that county, the place of death could not be readily determined; thus, venue was appropriate in the county where the body was found. Kidwell v. State, 264 Ga. 427 , 444 S.E.2d 789 (1994); Cook v. State, 273 Ga. 828 , 546 S.E.2d 487 (2001).

Police officer's testimony that the burning car in which the victim's body was found was located in Fulton County was sufficient to establish venue in that county. Jackson v. State, 292 Ga. 685 , 740 S.E.2d 609 (2013).

Confession of crime location to witness. - Statement by defendant to a witness, during the investigation of a case, that the defendant committed the offense at a certain geographically located spot, plus the sworn testimony of the witness during the trial that such spot is in the county of the court taking jurisdiction, is sufficient proof of venue, when there are no circumstances tending to prove that the venue was in fact in some other county. Austin v. State, 89 Ga. App. 866 , 81 S.E.2d 508 (1954).

Lottery documents found at defendant's home in county with lottery. - Contention that the state failed to show jurisdictional venue in lottery prosecution was without merit since the lottery documents were seized at the defendant's home on the date defendant was arrested, and the jury was authorized to find that the exhibited documents were current, even though no dates were shown, and that the documents were being used in the numbers games which the evidence showed was at that time in full operation in the county. Mills v. State, 71 Ga. App. 353 , 30 S.E.2d 824 (1944).

Statement showing murder in decedent's home in trial county. - When the uncontradicted evidence and the defendant's statement showed that the accused did the killing as alleged in the indictment for murder without justification or mitigation, and that the killing was at the home of the deceased who lived on a named person's place in Clay County, and the trial was in Clay County, the verdict of guilt of murder without recommendation was supported by the evidence, and the venue was shown to be in Clay County, the place of trial. Jones v. State, 197 Ga. 604 , 30 S.E.2d 192 (1944).

Venue in a murder case was proper. - Venue proper in Columbia County, where the victim was shot in Columbia County, but the victim's body was discovered in a car in a lake in Lincoln County, and the medical examiner listed drowning, secondary to a bullet wound to the head, as the cause of death. Tankersley v. State, 261 Ga. 318 , 404 S.E.2d 564 (1991).

Jury could properly find that venue of a murder trial was proper under O.C.G.A. § 17-2-2(c) as the victim's body was discovered in the county of the proceedings and the county in which the cause of death was inflicted could not be readily determined; the mere fact that some circumstances pointed to another county as the place of death did not mean that there was a fatal variance between the allegata and probata since there was no actual evidence of the place of the murder. Watson v. State, 278 Ga. 763 , 604 S.E.2d 804 (2004).

Since the defendant conceded that the homicide was committed in a moving vehicle and the victim's body was found in Houston County, and there was no evidence that the fatal injury was inflicted anywhere other than Houston County, the state sufficiently proved venue as to the murder. Faulkner v. State, 295 Ga. 321 , 758 S.E.2d 817 (2014).

In a murder case, although there may have been conflicting evidence regarding in which county the victim's injuries were inflicted, it was undisputed that the victim's body was found in Pike County, and the jury was therefore authorized to find beyond a reasonable doubt that venue was proper in Pike County, pursuant to O.C.G.A. § 17-2-2(c) . Crawford v. State, 297 Ga. 680 , 777 S.E.2d 463 (2015).

Venue in the county was established beyond a reasonable doubt under O.C.G.A. § 17-2-2(c) because both victims suffered gunshot wounds and died at an address located in the county. Jones v. State, 301 Ga. 1 , 799 S.E.2d 196 (2017).

Evidence established beyond a reasonable doubt that venue was properly in Houston County because the state presented testimony at trial establishing that the crimes against the victim culminating in the victim's murder were committed in Houston County as the place where the victim was severely beaten was in Houston County, the place where the victim was strangled to death was in Houston County, and the place where the victim's body was discovered was in Houston County; thus, the failure to prove venue was not a meritorious basis for granting directed verdicts of acquittal. Pike v. State, 302 Ga. 795 , 809 S.E.2d 756 (2018).

Evidence that victim gave funds to embezzler in trial county. - When the evidence authorized the jury to infer that at the time the money was entrusted for a specific purpose in Fulton County, the defendant intended to convert the money to defendant's own use and not to apply the money to the benefit and use of the owner so entrusting it, then venue could be laid in Fulton County. Price v. State, 76 Ga. App. 283 , 45 S.E.2d 462 (1947).

County border location evidence. - Evidence was sufficient to trigger the provisions of subsection (b) of O.C.G.A. § 17-2-2 since the evidence showed that the victim was standing on the doorstep of the victim's home in Wilkinson County within walking distance of Twiggs County when the defendant, walking through a nearby backyard, threw a pipe at the victim. Carswell v. State, 244 Ga. App. 516 , 534 S.E.2d 568 (2000).

Prosecution for larceny after trust where conversion in other county. - Venue in prosecution for larceny after trust may be laid in the county where the property was entrusted, although the physical conversion of it was in another county, where the facts authorized the jury to find that the intent to convert the money was formed in the county where the property was entrusted. Price v. State, 76 Ga. App. 283 , 45 S.E.2d 462 (1947).

Confession and corroboration authorized venue. - On the prosecution for cattle stealing in which the defendant made an admissible confession as to every essential element of the crime, and the evidence was sufficient to establish the corpus delicti aliunde the confession, and the confession as to venue as well as the other essential elements of the crime was corroborated by other evidence, a verdict of guilty was authorized. Kicklighter v. State, 76 Ga. App. 246 , 45 S.E.2d 719 (1947).

Evidence sufficient to establish the venue of crime of cattle stealing. Kicklighter v. State, 76 Ga. App. 246 , 45 S.E.2d 719 (1947).

Venue of offense of attempting to steal cattle was sufficiently proved. - Davis v. State, 66 Ga. App. 877 , 19 S.E.2d 543 (1942).

When venue is not contested at trial, slight proof is sufficient. Jackson v. State, 177 Ga. App. 718 , 341 S.E.2d 274 (1986); Brown v. State, 205 Ga. App. 31 , 421 S.E.2d 340 (1992).

When evidence as to venue is conflicting. - State must prove venue as jurisdictional fact beyond a reasonable doubt. Adsitt v. State, 248 Ga. 237 , 282 S.E.2d 305 (1981).

Venue needs clear proof beyond reasonable doubt. - Although slight evidence of venue may be sufficient when the fact of venue is not contested, nevertheless, it is a jurisdictional fact and must be proved clearly and beyond reasonable doubt. Gibson v. State, 52 Ga. App. 297 , 183 S.E. 83 (1935); Rowland v. State, 90 Ga. App. 742 , 84 S.E.2d 209 (1954).

Venue of the crime must be established clearly and beyond a reasonable doubt. Jackson v. State, 177 Ga. App. 718 , 341 S.E.2d 274 (1986).

Venue must be established beyond a reasonable doubt. Levitt v. State, 201 Ga. App. 63 , 410 S.E.2d 170 (1991).

Absent sufficient proof establishing venue, and proof that a crime took place within a city without also proving that the city was entirely within a county did not establish venue, the defendant's aggravated sexual battery and aggravated sodomy convictions were reversed. Melton v. State, 282 Ga. App. 685 , 639 S.E.2d 411 (2006).

Jury instructions set forth in O.C.G.A. § 17-2-2(c) violated the habeas petitioner's due process rights since Ga. Const. 1983, Art. VI, Sec. II, Para. V made venue an essential element of malice murder, and the instruction's mandate that jurors had to consider the cause of death to have occurred where the body was found improperly shifted the burden of proving otherwise onto the defendant. Owens v. McLaughlin, 733 F.3d 320 (11th Cir. 2013).

Evidence of venue, though slight, may be sufficient. - Defendant's conviction for impersonating a law enforcement officer was affirmed as venue was established since the state presented evidence that the defendant lived and was arrested in Catoosa County, Georgia, which authorized the jury to find beyond a reasonable doubt that the defendant might have held oneself out as a law enforcement officer via the online application in Catoosa County; therefore, proof of venue was sufficient. Chase v. State, 337 Ga. App. 449 , 787 S.E.2d 802 (2016).

Uniform traffic citations are not evidence for venue purposes. - Citation cannot provide the factual basis necessary to establish venue. Graves v. State, 269 Ga. 772 , 504 S.E.2d 679 (1998), overruled on other grounds, Jones v. State, 272 Ga. 900 , 537 S.E.2d 80 (2000), reversing Graves v. State, 227 Ga. App. 628 , 490 S.E.2d 111 (1997).

Proof insufficient if venue evidence equivocal. - Venue may be proved by circumstantial evidence; but circumstances which render it possible that an alleged crime was committed within the jurisdiction of the court are insufficient to establish the jurisdictional element of venue when, from the circumstances adduced, it is as reasonable and possible that the crime was committed beyond the jurisdiction of the court. Clark v. State, 55 Ga. App. 162 , 189 S.E. 379 (1937).

When the indictment did not charge uttering a forged instrument, but only charged the defendant with making, signing, forging, and counterfeiting the instrument, and the evidence failed to establish with any degree of clearness where this act may have taken place, the venue of the crime was not supported by the evidence. Rowland v. State, 90 Ga. App. 742 , 84 S.E.2d 209 (1954).

Only rank speculation supported venue in the defendant's trial for cruelty to children; therefore, the trial court erred in not granting the defendant's motion for a directed verdict on this charge. Nihart v. State, 227 Ga. App. 272 , 488 S.E.2d 740 (1997).

Evidence insufficient to establish venue. - Evidence at defendant's trial on a charge of aggravated assault, in violation of O.C.G.A. § 16-5-21 , was insufficient to establish venue for purposes of O.C.G.A. § 17-2-2(e) , since the crime arose while the defendant was driving after a former girlfriend and the girlfriend testified to living with her parents in Paulding County, near the line of Polk County, and further, that when she was minutes or less from home, she stopped on the side of the road; there was no evidence by her or anyone else that the site off the roadway where the crime occurred was in Douglas County and, accordingly, reversal of the conviction was required. Morris v. State, 263 Ga. App. 115 , 587 S.E.2d 272 (2003).

Juvenile's numerous delinquency adjudications were reversed because the relevant county was never mentioned by any witness and it is not sufficient to prove that a crime occurred in a particular city without also proving that the city is entirely within the relevant county. In the Interest of J.B., 289 Ga. App. 617 , 658 S.E.2d 194 (2008).

Defendant's convictions for rape and related crimes involving one out of six victims was reversed on appeal as the state failed to prove that the crimes against that victim occurred in Fulton County, Georgia, where the trial was held as the victim stated that the victim was using a pay phone on a certain street at a certain location at the time the victim was abducted, but the state never put forth any evidence establishing that the street at issue was in Fulton County. Further, there was no evidence offered by the state to establish the location of the school the victim had met the police at after the crime. Baker v. State, 295 Ga. App. 162 , 671 S.E.2d 206 (2008), cert. denied, No. S09C0571, 2009 Ga. LEXIS 183 (Ga. 2009).

State's failure to prove beyond a reasonable doubt that the defendant and the codefendant possessed a pipe with traces of methamphetamine on the pipe, which was discovered in a search of the defendant's impounded vehicle in the county, rendered the verdict contrary to law, without a sufficient evidentiary basis, because venue was an essential element of the crime, and there was no direct evidence of possession of the pipe in the county; because there was no evidence placing the pipe in the vehicle while the vehicle was in the county, and there was a possibility that the pipe was put in the vehicle after the shootings during one of several stops the defendant and the codefendant made while in Alabama, venue for possession of methamphetamine was not proven to be in the county. Coleman v. State, 286 Ga. 291 , 687 S.E.2d 427 (2009).

State failed to prove venue beyond a reasonable doubt because evidence that the defendant's drugs sales to an informant occurred somewhere in Vidalia, Georgia, was insufficient to establish that the crimes occurred in Toombs County since the habeas court properly took judicial notice that Vidalia was located in two different counties, Toombs and Montgomery, and O.C.G.A. § 17-2-2(e) was inapplicable; because the informant would have known the general locations where the sales occurred and because the drug task force agents knew the exact route that the informant and the defendant traveled, the state could have readily determined whether the drug sales occurred in Toombs County and offered evidence to the jury on that essential point. Thompson v. Brown, 288 Ga. 855 , 708 S.E.2d 270 (2011).

Defendant's claim that the state failed to prove venue lacked merit as an officer testified that the victim's body was found in Baldwin County and additional testimony proved that the defendant drove the victim to the location where the victim was found, shot the victim, and left the victim for dead. Hargrove v. State, 291 Ga. 879 , 734 S.E.2d 34 (2012).

State failed to present evidence of venue necessary for a fleeing and eluding conviction, as the testimony merely identified streets, but did indicate the counties in which the chase or shooting took place. Grant v. State, 326 Ga. App. 121 , 756 S.E.2d 255 (2014).

Sufficient evidence supported the defendant's conviction for theft by taking since the evidence showed that the defendant never used the funds borrowed for relocating the Florida plant, as promised, and the loan was secured with equipment that the defendant did not own; however, the prosecution failed to prove venue was proper in Dodge County, Georgia, since although the contracts were executed in Dodge County, there was no evidence that the defendant exercised any control over the $ 350,000 in Dodge County. Davis v. State, 326 Ga. App. 279 , 754 S.E.2d 815 (2014).

Defendant's conviction for making a false statement in violation of O.C.G.A. § 16-10-20 was reversed on appeal because the state offered no proof that the jail where the alleged statement was made was in a particular county and since the defendant was also driven, the false statement may have been made in another county. Stockard v. State, 327 Ga. App. 184 , 755 S.E.2d 548 (2014).

Since the state failed to present circumstantial evidence supporting a finding that the defendant and the victim entered Fulton County, the jury had no basis to apply O.C.G.A. § 17-2-2(h) . State v. Robertson, 329 Ga. App. 182 , 764 S.E.2d 427 (2014).

There was insufficient evidence to support the defendant's conviction for failing to stop at a stop sign because the state failed to prove venue. Glispie v. State, 335 Ga. App. 177 , 779 S.E.2d 767 (2015), aff'd in part and rev'd in part, 300 Ga. 128 793 S.E.2d 381 (Ga. 2016).

Defendant's murder conviction was reversed because although the evidence established that the cause of death, the shooting of the victim, was inflicted on a boat ramp in or near Lock and Dam Park and venue was proper where the boat ramp was situated under O.C.G.A. § 17-2-2(c) , there was no evidence as to the county in which the park was located. Twitty v. State, 298 Ga. 204 , 779 S.E.2d 298 (2015).

Testimony of victim. - Testimony from the victim that property was taken from the victim's premises located in a certain county is sufficient to establish venue in that county. Brown v. State, 157 Ga. App. 473 , 278 S.E.2d 31 (1981).

Venue for financial transaction card theft. - Because both the restaurant where defendant had access to the card and the store where the card was used were located in the same county, there was sufficient evidence to establish venue for financial transaction card theft. Johnson v. State, 246 Ga. App. 239 , 539 S.E.2d 914 (2000).

Defendant's convictions on 20 counts of financial transaction card fraud were not authorized since the evidence on each count created the inference that the financial transaction card was presented and goods were received in a county other than that in which defendant was prosecuted. Newsom v. State, 183 Ga. App. 339 , 359 S.E.2d 11 (1987).

Evidence sufficient to establish venue. - In a drug possession case, the state properly established venue in Cherokee County beyond a reasonable doubt because O.C.G.A. § 17-2-2(h) permitted venue to be established in the county where a defendant was immediately present before being asked to provide a urine sample, which in the instant case was in the defendant's Cherokee County apartment where police officers were executing a search warrant. West v. State, 288 Ga. App. 566 , 654 S.E.2d 463 (2007).

With regard to defendant's convictions on two counts of cruelty to children in the first degree and one count of aggravated battery, the state proved venue in Cobb County, Georgia, based on the defendant being indicted in Cobb County for crimes committed sometime between July 1, 2002, and December 22, 2002; the evidence presented at trial established that the defendant lived with the victim's parent and the victim at an apartment located in Cobb County during that time; the manager of the apartment complex saw the victim at the apartment on a daily basis and knew that the victim lived in the apartment with defendant; defendant admitted to whipping the victim on a daily basis; and the manager saw the victim in the apartment with injuries. Glover v. State, 292 Ga. App. 22 , 663 S.E.2d 772 (2008).

As there was evidence from the defendant's confession to police and testimony from bank employees, together with physical evidence, that the defendant wrote a check out from a victim's checkbook in the defendant's name and then cashed the check at the bank, there was sufficient evidence to support a conviction for forgery in violation of O.C.G.A. § 16-9-1(a) ; the element of venue was properly established by the evidence as well pursuant to O.C.G.A. § 17-2-2(a) . Bell v. State, 284 Ga. 790 , 671 S.E.2d 815 (2009).

Jury's determination that venue was proper in Fulton County was supported by the record and, thus, the trial court's denial of the defendant's motion for a directed verdict was not erroneous under circumstances in which the victim was abducted at a mall in Fulton County, the victim stated that the defendant originally got on a northbound interstate, but that the victim had no idea where the victim and the defendant went from there, the victim and the defendant drove around for about 20 minutes, the victim was wearing blacked-out sunglasses and could not see, and eventually the victim was taken from the vehicle into an unknown location and raped; the most definite testimony regarding the location of the crimes related to the mall, which was shown to be located in Fulton County, and the jury was authorized to find beyond a reasonable doubt that the rape might have occurred in Fulton County. Leftwich v. State, 299 Ga. App. 392 , 682 S.E.2d 614 (2009), cert. denied, No. S09C2013, 2009 Ga. LEXIS 710 (Ga. 2009); cert. denied, 559 U.S. 1019, 130 S. Ct. 1913 , 176 L. Ed. 2 d 386 (2010).

Evidence that a police officer found the victim lying on a sidewalk in Fulton County was sufficient to establish venue in that county under Ga. Const. 1983, Art. VI, Sec. II, Para. VI and O.C.G.A. § 17-2-2(a) . Branford v. State, 299 Ga. App. 890 , 685 S.E.2d 731 (2009).

Venue with regard to convictions for possession of methamphetamine and of less than an ounce of marijuana was established as being in the county where the drugs were discovered during a search of the defendant's impounded vehicle because although the state presented no evidence that the methamphetamine residue and the marijuana found in the vehicle were in the possession of the defendant and the codefendant while they were in the county. On cross-examination, the defendant admitted to having hand-rolled a marijuana cigarette found in the vehicle the morning of the shooting; that testimony, coupled with the undisputed fact that the defendant, the codefendant, and the vehicle were at a service station in the county at a time following the point at which the defendant admitted having made the cigarette, established beyond a reasonable doubt that the defendant and the codefendant possessed the marijuana cigarette in the county. Coleman v. State, 286 Ga. 291 , 687 S.E.2d 427 (2009).

Since a shooting victim was assaulted in a vehicle that was shown by an investigator's officer to have been traveling through Fulton County, the state proved beyond a reasonable doubt that venue was proper in Fulton County. Saxton v. State, 300 Ga. App. 535 , 685 S.E.2d 780 (2009).

State met the state's burden of proving beyond a reasonable doubt that venue of the crime charged was properly in Fulton County because, although the victim did not know the exact location of the shooting, the logical import of the victim's testimony was that the crime scene itself was in Fulton County; the victim testified to driving from one street to what the victim thought was another street where the defendant shot the victim, and the state established that the first street was in Fulton County. Sewell v. State, 302 Ga. App. 151 , 690 S.E.2d 634 , cert. denied, No. S10C0856, 2010 Ga. LEXIS 530 (Ga. 2010).

State's proof of venue was sufficient because the uncontradicted evidence at trial was that the victim was shot and buried on a hunting property in Echols County. Cantera v. State, 304 Ga. App. 289 , 696 S.E.2d 354 (2010).

State established venue under Ga. Const. 1983, Art. VI, Sec. II, Para. VI and O.C.G.A. §§ 16-9-125 and 17-2-2(a) because a reasonable trier of fact was authorized to find beyond a reasonable doubt that the victims resided or were found in Forsyth County at the time the offense of financial identity fraud was committed as alleged in the indictment; the victim testified that the victim had been a resident of Forsyth County for twelve years and that the victim's company had been located there for seventeen years. Zachery v. State, 312 Ga. App. 418 , 718 S.E.2d 332 (2011).

In an aggravated battery and gang activity case in which the crimes occurred at a bus stop outside Six Flags Over Georgia amusement park, there was sufficient evidence to establish venue in Cobb County because one defendant testified that the fight was "on Cobb County's side of the bus..." and other witnesses indicated on an exhibit the location where the witnesses exited the park and testified that the witnesses were at the Cobb County Transit bus stop. Morey v. State, 312 Ga. App. 678 , 719 S.E.2d 504 (2011), cert. denied, No. S12C0451, 2012 Ga. LEXIS 592 (Ga. 2012).

State met the state's burden of proving beyond a reasonable doubt that venue of the crime charged was properly in Troup County, Georgia because the testimony of the victim's grandmother first established the exact location of the crime scene, and the victim testified that the events on the night in question took place in that county; the defendant offered no evidence to the contrary. Strozier v. State, 314 Ga. App. 432 , 724 S.E.2d 446 (2012).

Pursuant to O.C.G.A. § 17-2-2(h) , the state adequately proved venue was in DeKalb County as to a murder victim whose body was never found because the victim was last seen alive in that county, the defendant confessed that the defendant shot the victim in Atlanta, which was partly in DeKalb County, and the defendant and the victim had been together every day at the defendant's residence in that county. Rogers v. State, 290 Ga. 401 , 721 S.E.2d 864 (2012).

Trial court did not err in denying the defendant's motion to dismiss an indictment charging the defendant with arranging to buy cattle and failing or refusing to pay the seller in violation of O.C.G.A. § 16-9-58 on the ground that venue did not lie in Laurens County because there was some evidence that the place of payment was at the seller's location in Laurens County and that the defendant wrongfully failed or refused to pay the seller in Laurens County for the cattle; even if the defendant's fraudulent intent arose in Kansas sometime after the cattle were shipped, the crime was not consummated until the defendant failed or refused to pay. Babbitt v. State, 314 Ga. App. 115 , 723 S.E.2d 10 (2012).

State met the state's burden of proving beyond a reasonable doubt that venue was properly in Cobb County, Georgia, based on the evidence which showed that the child victim lived with the defendants at the family's residence which was located in Cobb County, there was evidence that the male defendant tied the victim up, tied the victim to a bedroom door at the home and whipped the victim, and the victim also testified that the male defendant had hit the victim at the family's home on the day the victim ran to a neighbor's home. Moore v. State, 319 Ga. App. 766 , 738 S.E.2d 348 (2013).

There was sufficient evidence from which the jury could have concluded beyond a reasonable doubt that the crimes were committed in Walton County, including that numerous officers from the Walton County Sheriff's Office responded to the scene of the crimes, evidence was collected by the criminal investigation unit of that office and, thus, venue was proven. Propst v. State, 299 Ga. 557 , 788 S.E.2d 484 (2016), cert. denied, 137 S. Ct. 646 , 196 L. Ed. 2 d 542 (U.S. 2017).

Evidence as a whole was sufficient to prove venue beyond a reasonable doubt because the state demonstrated that the defendant encountered the victim at the Washington Street barber shop in Newton County; after the victim was shot, the victim's vehicle came to rest at a Washington Street service station in Newton County; the cause of death was inflicted on Washington Street within a few hundred yards of the Washington Street service station; and the victim was shot on Washington Street only minutes after the victim left the Washington Street barbershop and only moments before the victim's vehicle crashed and came to rest at the service station. McMullen v. State, 300 Ga. 173 , 794 S.E.2d 118 (2016).

Evidence supported a finding that the crimes occurred in Floyd County where the Sheriff's Department employees heard the defendant's and the co-defendant's false statements to them about the purported death of the defendant's son's father. Reeves v. State, 346 Ga. App. 414 , 816 S.E.2d 401 (2018).

Testimony sufficient to support evidence regarding venue. - When one of the officers testified that a round of shots was directed at the officers' vehicle at a location that the officer believed to be within Clayton County, this testimony of the officer was sufficient to support the jury's finding that venue was in Clayton County. Davis v. State, 203 Ga. App. 106 , 416 S.E.2d 375 (1992).

Testimony of police officers that the crimes charged in the indictment occurred in the county where defendant's trial was conducted was sufficient to authorize a finding of venue. Jones v. State, 220 Ga. App. 161 , 469 S.E.2d 300 (1996).

State's misstatement about an address where the crimes arising from the defendant's attack on a taxi driver occurred, made during the state's opening statement, did not prevent the state from proving venue beyond a reasonable doubt; the state's opening statement was not evidence, a witness and a police officer stated the correct address, the officer also identified the county where the crimes occurred, and any conflict in the evidence about where the crimes occurred was resolved by the jury in favor of the state. Schofield v. State, 261 Ga. App. 70 , 582 S.E.2d 11 (2003).

By applying the provisions of O.C.G.A. § 17-2-2(e) and (h), the jury could conclude that venue was proper because there was evidence that the victim's presence in the car remained voluntary until it became clear that the defendant was not mistakenly driving toward Alabama and that the defendant would not accommodate the victim's wish that the victim not be taken there; the jury could determine that the crime of kidnapping was complete when the defendant refused to turn the car around or to stop and let the victim exit. Pruitt v. State, 279 Ga. 140 , 611 S.E.2d 47 , cert. denied, 546 U.S. 866, 126 S. Ct. 165 , 163 L. Ed. 2 d 152 (2005).

Venue of defendant's armed robbery, theft by taking a motor vehicle, and possession of a firearm during the commission of a crime trial was proper in Hall County as the victim gave the victim's address and a police officer testified that the officer was called to investigate a robbery at that address in Hall County, where the officer spoke with the victim. Olarte v. State, 273 Ga. App. 96 , 614 S.E.2d 213 (2005).

Jury was authorized to interpret the testimony of a victim's parent that the parent lived with the daughter in Heard County, Georgia and that the parent lived in a different trailer than the one in which the family lived when the defendant molested the victim at the parent's home to mean that the victim's family had been residing in Heard County when defendant molested the victim as evidence that the offenses were committed in Heard County. Moody v. State, 279 Ga. App. 457 , 631 S.E.2d 473 (2006).

Venue was established in a child molestation case when the victim's aunt testified that the victim told her that the defendant molested the victim at the "big house," which was what the victim called the house where the victim's grandmother lived, and the evidence established that the "big house" was in Meriwether County. Brooks v. State, 286 Ga. App. 209 , 648 S.E.2d 724 (2007).

Venue in Randolph County had been proven for second-degree criminal damage and for criminal trespass involving a couple's property. A neighbor testified that the couple's home was "probably five or six houses past" the defendant's house and stated "yes" when asked if all of those houses were located in Randolph County. Bass v. State, 288 Ga. App. 690 , 655 S.E.2d 303 (2007), rev'd on other grounds, 2009 Ga. LEXIS 31 (Ga. 2009).

In defendants' trial for fleeing a police officer, reckless driving, and speeding, in Newton County, because a state trooper testified that the trooper first encountered defendants in Newton County and described the route using a map of Newton County. The trooper testified that no part of the pursuit took place off the map. Even had the route of pursuit taken the parties across county lines out of Newton County, venue would still be properly founded in Newton County pursuant to O.C.G.A. § 17-2-2(e) or (h), which allowed venue wherever a portion of the crime took place or wherever the evidence showed the crime took place. Brewster v. State, 300 Ga. App. 143 , 684 S.E.2d 309 (2009).

Incest and child molestation. - Because the victim lived in the county where the trial was held and the defendant would stay overnight, this evidence supported an inference that the defendant had access to the victim in that county and showed beyond a reasonable doubt that the defendant might have had intercourse with the victim there; consequently, pursuant to O.C.G.A. § 17-2-2(h) , the evidence was sufficient to support venue there. Drake v. State, 238 Ga. App. 584 , 519 S.E.2d 692 (1999).

Child molestation in travelling car. - Although the victim testified that the victim did not know where the car was when the defendant touched the victim, venue was proper in a county which was said to have been traversed by adults who were also present in the vehicle. Withman v. State, 210 Ga. App. 159 , 435 S.E.2d 519 (1993).

Rape in traveling car. - Rape victim's testimony that she and abductors traveled for a time while making many turns, combined with evidence as to the county in which she was abducted, was sufficient to prove that the rape could have occurred in that county. Dillard v. State, 223 Ga. App. 405 , 477 S.E.2d 674 (1996).

Since the evidence sufficiently established that the defendant's coconspirator raped and sodomized the victim in a hijacked car while the defendant was driving the car between counties, venue was sufficiently established under O.C.G.A. § 17-2-2(b) , (e), (h). Short v. State, 276 Ga. App. 340 , 623 S.E.2d 195 (2005).

Sodomy in traveling car. - Incident on which a sodomy charge was based occurred about one mile from the home in Gordon County where the defendant and the victim lived, when the defendant and the victim were driving home; thus, under O.C.G.A. § 17-2-2(e) , the crime was considered to have occurred in Gordon County, through which the car traveled, and the state proved venue. Prudhomme v. State, 285 Ga. App. 662 , 647 S.E.2d 343 (2007).

Venue established by subsection (h). - Because O.C.G.A. § 17-2-2(h) applies by the statute's terms to "any case," use of subsection (h) to determine venue in a homicide case is not precluded and where the evidence allowed the jury to find beyond a reasonable doubt that the murder might have been committed in Laurens County it was sufficient to support the jury's finding that venue was appropriate in Laurens County. Nelson v. State, 262 Ga. 763 , 426 S.E.2d 357 (1993). But see Clark v. State, 271 Ga. 6 , 515 S.E.2d 155 (1999).

For venue purposes, evidence that showed that a murder victim's blood was found in a motel room in Floyd County, along with the fact that the victim was last seen alive in Floyd County, was sufficient under O.C.G.A. § 17-2-2(h) to allow a jury to consider that the murder might have been committed in Floyd County beyond a reasonable doubt. Edmond v. State, 283 Ga. 507 , 661 S.E.2d 520 (2008).

State does not have to prove where drug ingested. - Because the presence of methamphetamine in defendant's urine constituted circumstantial evidence that defendant knowingly possessed the drug within three days prior to a urine test, and because the state did not have to prove where the drug was actually ingested, the evidence was sufficient to support defendant's conviction and venue under O.C.G.A. § 17-2-2(h) . Harbin v. State, 297 Ga. App. 877 , 678 S.E.2d 553 (2009).

Evidence of highway number insufficient proof of venue. - In a DUI case under O.C.G.A. § 40-6-391(a)(1), the state failed to prove that venue was proper in Fayette County: the evidence showed only that the defendant was stopped on Highway 138 by a Fayette County Sheriff's deputy, which was insufficient to prove venue; because DUI elements were established by the evidence, retrial was permitted. Smith v. State, 345 Ga. App. 43 , 812 S.E.2d 117 (2018).

Stipulating to venue. - Pretermitting whether the decisions not to move for a directed verdict for lack of venue and to stipulate to venue fell below the objective standard of reasonableness, the defendant could not prove that there was a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Indeed, if defense counsel either moved for a directed verdict as to the lack of venue or decided against ultimately stipulating to venue, the trial transcript clearly showed that the state was prepared to reopen the evidence to recall a witness to prove venue. Muldrow v. State, 322 Ga. App. 190 , 744 S.E.2d 413 (2013).

Jury instruction was not improper. - Although the better practice was to give a jury instruction on venue that indicated that a jury "may consider" whether a crime was committed in any county in which the evidence showed beyond a reasonable doubt that the crime might have been committed, a jury instruction that instead mirrored the language of O.C.G.A. § 17-2-2 was not erroneous and did not improperly shift the burden of proof regarding venue to the defendant in a murder case. Edmond v. State, 283 Ga. 507 , 661 S.E.2d 520 (2008).

Venue a question of fact for the jury. - Venue was a question for the jury where the victim was abducted in the county in which the trial was held and where the defendant's testimony was sufficiently contradicted in other areas so as to place in the hands of the jury all issues concerning the weight and credibility of the defendant's statements as to the location of the conduct. Campbell v. State, 223 Ga. App. 484 , 477 S.E.2d 905 (1996).

State proved beyond a reasonable doubt that the defendant's fleeing or attempting to elude crimes took place in the county where the defendant's trial took place such that the trial court in that county had venue and jurisdiction; weighing the evidence of venue was a jury, not an appeals court, function. Ward v. State, 270 Ga. App. 427 , 606 S.E.2d 877 (2004).

Whether the state established venue was a question for a jury because the question of whether the defendant's efforts to abandon the illegal files was successful when the defendant placed the files in the trash before entering Clayton County could not be determined as a matter of law at the pretrial stage. State v. Al-Khayyal, 322 Ga. App. 718 , 744 S.E.2d 885 (2013).

General Consideration

Construction with tolling provision of O.C.G.A. § 17-3-2.2 . - Trial court erred by applying O.C.G.A. § 17-3-2.2 to the RICO and theft charges against the defendants because it was necessary for the state to show that the victim was over 65 years of age, was the principal stockholder of the corporation, was the owner of the property allegedly stolen, not the corporation, to determine the date the crime became known to the victim. Harper v. State, 292 Ga. 557 , 738 S.E.2d 584 (2013).

When period begins to run. - In criminal cases, the statute of limitations runs, with certain exceptions, from the time of the crime to the time of indictment, not from time of the act to time of the trial. Cain v. State, 144 Ga. App. 249 , 240 S.E.2d 750 (1977).

Prosecution against the defendant for simple battery was timely filed within two years, pursuant to O.C.G.A. § 17-3-1(d) , since the accusation was filed within the time period which was deemed to be the commencement of the matter pursuant to O.C.G.A. § 16-1-3(14) ; the fact that the supporting affidavit was filed six days after the limitations period ran did not affect the timeliness of the action pursuant to O.C.G.A. § 17-7-71(a) because that document was for the issuance of an arrest warrant. Cochran v. State, 259 Ga. App. 130 , 575 S.E.2d 901 (2003).

Trial court erred in dismissing the accusations filed against the defendants in separate cases as the evidence showed that in each case the accusation was filed against the respective defendant within the applicable two-year time period set forth in O.C.G.A. § 17-3-1(d) . State v. Thompson, 261 Ga. App. 828 , 584 S.E.2d 7 (2003).

Trial court did not err in denying the defendant's motion to dismiss as prosecution of the defendant for misdemeanors was not commenced outside the applicable two-year statute of limitations after the defendant had the defendant's case transferred from the county probate court to the superior court and a superior court indictment was issued for the same offenses contained in the Uniform Traffic Citation (UTC) issued to the defendant on the day of the alleged offenses; rather, the prosecution against the defendant "commenced" at the time the UTC was issued, which occurred within the statute of limitations. Bishop v. State, 261 Ga. App. 445 , 582 S.E.2d 571 (2003).

Four-year statute of limitations contained in O.C.G.A. § 17-3-1(c) did not bar charges for money taken from the city by the defendant, the city's employee, more than four years before the indictment since: (1) the series of transactions constituted a single embezzlement and could be charged as a single charge in the indictment; (2) the embezzlement was not discovered until mid-July 2000; and (3) the indictment was made within four years after that discovery. Stack-Thorpe v. State, 270 Ga. App. 796 , 608 S.E.2d 289 (2004).

With regard to a defendant's conviction for rape of a minor relative, the trial court did not err by denying the defendant's motion for a new trial on the ground that the applicable statute of limitations ran on the rape offenses before the defendant was charged because in applying the 1996 amendment to O.C.G.A. § 17-3-1 and the tolling provisions of O.C.G.A. § 17-3-2.1 , the limitation period for the defendant's crime ran 15 years from December 13, 1995, when the crimes were first reported to authorities. Thus, because the state had until December 13, 2010, to indict the defendant, the January 7, 2008, indictment was timely and no ex post facto violation arose because the original seven-year limitation period had not expired at the time. Flournoy v. State, 299 Ga. App. 377 , 682 S.E.2d 632 (2009).

Burden of proof on state. - Burden is on the state to prove that a crime occurred within the applicable statute of limitation. Tarver v. State, 198 Ga. App. 634 , 402 S.E.2d 365 (1991).

State was not required to prove the crime occurred on a date certain. - Statute of limitation for aggravated child molestation is seven years; when the date of the alleged offenses was not stated as a material element of the offense charged, the state was not required to prove the crime occurred on a date certain, and the state's proof showing that the offenses occurred within the applicable seven-year limitation period was adequate. Tyler v. State, 266 Ga. App. 221 , 596 S.E.2d 651 (2004).

Allegation and proof of exception to limitation required. - When an exception is relied upon to prevent the bar of the statute of limitations in a criminal case, it must be alleged and proved. Moss v. State, 220 Ga. App. 150 , 469 S.E.2d 325 (1996).

Prosecution not time barred when intending to prove exception. - Defendant's argument that the trial court erred in determining that a superceding indictment served to toll the statutes of limitations as to Counts 2, 4, and 5 because the tolling language in those defectively referred back to Count 1, rather than the count in question, was meritless because the defendant was sufficiently apprised of all the essential elements of the charges when read as a whole, including the fact that the state intended to prove that the statutes of limitations for the crimes were tolled until 2005 pursuant to O.C.G.A. §§ 17-3-1 (c.1) and 17-3-2(2) due to the fact that the defendant's identity was unknown until that time; the superfluous language "as to count one (1)" contained in Counts 2 through 6 was not enough to confuse the defendant about the offenses or the applicable exception to the statutes of limitations, which the state intended to prove at trial. Because the state was alleging an exception to the statutes of limitations, it was not barred from proceeding against the defendant under the superceding indictment. Leftwich v. State, 299 Ga. App. 392 , 682 S.E.2d 614 (2009), cert. denied, No. S09C2013, 2009 Ga. LEXIS 710 (Ga. 2009); cert. denied, 559 U.S. 1019, 130 S. Ct. 1913 , 176 L. Ed. 2 d 386 (2010).

Nolle prosequi to indictment. - Because the state re-indicted the defendant within six months of the entry of the nolle prosequi pursuant to O.C.G.A. § 17-3-3 , the trial court did not err in denying the defendant's plea in bar. Hicks v. State, 315 Ga. App. 779 , 728 S.E.2d 294 (2012).

Second indictment did not need to allege special exception to statute of limitations. - Trial court properly denied the defendant's motion in arrest of a judgment of conviction for burglary and theft by taking because the second indictment was filed within the six-month extension authorized by O.C.G.A. § 17-3-3 and, therefore, did not need to allege an exception to the four-year statute of limitation. Johnson v. State, 335 Ga. App. 886 , 782 S.E.2d 50 (2016).

State need only prove date within period of limitations. - Date of the offense need not be proved with preciseness, but only that the offense occurred during the period of limitations. Cain v. State, 144 Ga. App. 249 , 240 S.E.2d 750 (1977).

Exact date is not material. - Court did not err in instructing the jurors that a verdict of guilty would be authorized if the jurors found beyond a reasonable doubt that the defendant committed the offense of bribery at any time within four years immediately preceding the filing of the indictment, as it is well settled in Georgia law that evidence of guilt is not restricted to the day mentioned in the indictment, but may extend to any day previous to the finding of the bill and within the statute of limitation for the prosecution of the offense. Carpenter v. State, 167 Ga. App. 634 , 307 S.E.2d 19 (1983), aff'd, 252 Ga. 79 , 310 S.E.2d 912 (1984).

When the defendant was accused of committing armed robbery on or about September 15, 2001, the defendant was tried in August 2002, and the defendant testified that the robbery occurred "last fall," the evidence supported a finding that the crime was committed during the fall of 2001, which was within the seven-year statute of limitations for armed robbery pursuant to O.C.G.A. §§ 16-8-41(b) and 17-3-1(b) ; as the exact date of the commission of the crime was not a material allegation of the indictment, the commission of the offense could be proved to have occurred any time within the limitations period. Houston v. State, 267 Ga. App. 383 , 599 S.E.2d 325 (2004).

With regard to defendant's conviction for burglary, the trial court did not err in allowing evidence of an April 30, 2003, burglary based on the date range of April 18 to 22, 2003, being set forth in the indictment because the date of the burglary was not an essential element of the burglary offense charged, and defendant did not assert a defense - alibi or otherwise - making the date material. Because the burglary of April 30, 2003, was within the applicable four-year statute of limitation, the trial court did not err in allowing evidence of the date. McDaniel v. State, 289 Ga. App. 722 , 658 S.E.2d 248 (2008).

Defendant's conviction for misstating a material fact to a victim in connection with the sale of a security for an indictment dated December 22, 2004, was properly proven by the state to have occurred within the four year statute of limitations period, by the state establishing that the victim invested in the stock by two checks, dated November 28 and December 13, 2001, and the victim testified that the investment was made based on conversations with the defendant during the months of October and November of 2001; as a result, the evidence was sufficient to show that the defendant's violative acts as to the sale of securities occurred within the period provided by the statute of limitations. Haupt v. State, 290 Ga. App. 616 , 660 S.E.2d 383 (2008).

Trial court, not jury, required to make factual findings raised in pretrial plea in bar alleging statute of limitations defense. - Trial court erred in reserving for the jury resolution of the defendants' pleas in bar, alleging a statute of limitations defense under O.C.G.A. § 17-3-1(c) to indictments charging thefts by taking and receiving in connection with a client's property transfers, because the trial court, and not the jury, was required to make factual findings based on evidence received during a pretrial hearing on this matter. Rader v. State, 300 Ga. App. 411 , 685 S.E.2d 405 (2009).

Crime committed prior to indictment. - Unless time is an essential element of the offense charged, the time of the commission of the offense alleged in the indictment is immaterial. To sustain a conviction, there must be proof to establish that the offense occurred prior to the return of the indictment and within the statute of limitations. Reynolds v. State, 147 Ga. App. 488 , 249 S.E.2d 305 (1978).

Trial court did not err in denying the defendant's motion for a directed verdict of acquittal on the ground that there was insufficient evidence that the crimes for which the defendant was charged, aggravated assault, making terroristic threats, and cruelty to children in the third degree, were committed on the date alleged in the indictment because there was sufficient evidence to support the allegations of the indictment; the exact date of the crimes was not a material allegation of the indictment because the exact date was not an essential element with respect to any of the charged offenses, and the date of the crimes proved at trial was prior to the return of the indictment and within the limitation periods for the crimes. Coats v. State, 303 Ga. App. 818 , 695 S.E.2d 285 (2010).

Offense date demonstrable by circumstantial evidence. - Date of the offense may be established by circumstantial evidence. Cain v. State, 144 Ga. App. 249 , 240 S.E.2d 750 (1977).

Circumstantial evidence was sufficient to show that acts of cruelty committed by the defendant on the defendant's 13-year-old stepson were committed within the statute of limitation. Lee v. State, 232 Ga. App. 300 , 501 S.E.2d 844 (1998).

Superseding indictment not barred. - Timely accusation charging the defendant with misdemeanors, which was later followed by an indictment that included the misdemeanor charges and a felony charge filed more than two years after the commission of the crimes, was not barred by the statute of limitations; the indictment merely duplicated the original misdemeanor charges, and the felony indictment was within the applicable statute of limitation period of four years. Wooten v. State, 240 Ga. App. 725 , 524 S.E.2d 776 (1999).

Malpractice in office. - In an action for malpractice in office brought against a judge of recorder's court for inappropriate handling of traffic cases for purposes of O.C.G.A. § 17-3-1(d) , the traffic cases became final on the date that the recorder's court entered the court's judgment of nolle prosequi or accepted a plea of guilty to a lesser offense and that result was entered by the court as the court's disposition. State v. Lester, 170 Ga. App. 471 , 317 S.E.2d 295 (1984); Andrews v. State, 175 Ga. App. 22 , 332 S.E.2d 299 (1985).

Prosecution for misdemeanor. - Trial court did not err in refusing to dismiss uniform traffic citations issued within two years of the date the offenses occurred, but later amended by the state, on the ground that the statute of limitation expired; the amended accusations did not constitute the commencement of a new prosecution and there had been no final disposition of the previously filed accusations. Prindle v. State, 240 Ga. App. 461 , 523 S.E.2d 44 (1999).

Prosecution for felony murder. - Defendant's prosecution for felony murder was not barred by O.C.G.A. § 17-3-1(a) even though the statute of limitations expired regarding the underlying felony because felony murder is a form of murder for which there is no statute of limitations. State v. Jones, 274 Ga. 287 , 553 S.E.2d 612 (2001).

When, in defendant's murder trial, counsel did not object to counts in the indictment as to when the statute of limitations expired, ineffective assistance of counsel was not shown because there was no prejudice as these counts were later dismissed, except those counts were allowed to serve as underlying felonies for a felony murder charge, and it was proper to allow felonies as to which the statute of limitations had expired to be used in this manner, and the evidence used to prove these felonies was admissible to prove those crimes as to which the statute of limitations had not expired. Zellars v. State, 278 Ga. 481 , 604 S.E.2d 147 (2004).

Amendment filed after two-year period in subsection (d). - When an original accusation was timely filed and valid within the meaning of O.C.G.A. § 17-7-71(c) , and was subsequently amended after the two-year period of limitations set forth in O.C.G.A. § 17-3-1(d) , the amendment did not negate the prior valid commencement of prosecution which occurred before the expiration of the operative statute of limitations. Freeman v. State, 194 Ga. App. 905 , 392 S.E.2d 330 (1990).

Lesser included offense. - Statute of limitations did not bar conviction on lesser included offense of voluntary manslaughter as the statute of limitations applicable in a criminal case was that which related to the offense charged in the indictment, and not to any minor offense included therein of which the accused might be found guilty. Glidewell v. State, 279 Ga. App. 114 , 630 S.E.2d 621 (2006), overruled on other grounds, Reynolds v. State, 285 Ga. 70 , 673 S.E.2d 854 (2009).

Application for plea in bar. - Trial court clearly erred in denying the defendant's plea in bar as to the kidnapping, aggravated assault, and burglary charges because the original indictment was brought 10 years after the offenses occurred while the statute of limitations for those offenses was seven years, four years, and four years respectively, but the trial court did not err in denying the plea in bar as to the rape charge, which had a 15-year limitations period. Lynch v. State, Ga. App. , 815 S.E.2d 340 (2018).

Waiver. - There was no absolute bar to the defendant's waiver of the right to protection of the statute of limitations in a plea agreement signed by the defendant and the defendant's counsel. State v. Barrett, 215 Ga. App. 401 , 451 S.E.2d 82 (1994), rev'd on other grounds, 265 Ga. 489 , 458 S.E.2d 620 (1995).

No ineffective assistance of counsel for failing to quash indictment based on date. - When the evidence showed that the offenses for which a defendant was charged occurred within the alleged date range and within the governing statute of limitation set forth in the indictment, and the defendant did not show that the evidence permitted the state to allege a specific date for any of the charges, nor did the defendant show that the lack of specific dates in the indictment materially affected the defendant's ability to present a defense, there was no reasonable probability that but for the defendant's trial counsel's failure to move to quash the indictment, the outcome of the defendant's trial would have been different. Stroud v. State, 284 Ga. App. 604 , 644 S.E.2d 467 (2007), cert. denied, 2007 Ga. LEXIS 506 (Ga. 2007).

No ineffective assistance of counsel for failing to quash indictment based on grand jury composition. - Trial counsel was not ineffective for failing to move to quash the indictment or to arrest judgment because even if a timely motion to quash had been filed, the indictment likely would have been dismissed because a convicted felon served on the grand jury in violation of O.C.G.A. § 15-12-60 , however, the state would have been free to obtain the identical indictment from a properly constituted grand jury. Brooks v. State, 332 Ga. App. 396 , 772 S.E.2d 838 (2015), cert. denied, No. S15C1472, 2015 Ga. LEXIS 587 (Ga. 2015); cert. denied, No. S15C1548, 2015 Ga. LEXIS 573 (Ga. 2015).

Cited in Bloodworth v. State, 128 Ga. App. 657 , 197 S.E.2d 423 (1973); Pope v. State, 129 Ga. App. 209 , 199 S.E.2d 368 (1973); Holloman v. State, 133 Ga. App. 275 , 211 S.E.2d 312 (1974); State v. Madden, 242 Ga. 637 , 250 S.E.2d 484 (1978); State v. Shepherd Constr. Co., 248 Ga. 1 , 281 S.E.2d 151 (1981); Lett v. State, 164 Ga. App. 584 , 298 S.E.2d 541 (1982); Andrews v. State, 175 Ga. App. 22 , 332 S.E.2d 299 (1985); Peavy v. State, 179 Ga. App. 397 , 346 S.E.2d 584 (1986); Keri v. State, 179 Ga. App. 664 , 347 S.E.2d 236 (1986); Weaver v. State, 179 Ga. App. 641 , 347 S.E.2d 295 (1986); Sanders v. State, 182 Ga. App. 581 , 356 S.E.2d 537 (1987); Watkins v. Laser/Print-Atlanta, Inc., 183 Ga. App. 172 , 358 S.E.2d 477 (1987); In re J.B., 183 Ga. App. 229 , 358 S.E.2d 620 (1987); Duncan v. State, 193 Ga. App. 793 , 389 S.E.2d 365 (1989); Martin v. State, 196 Ga. App. 145 , 395 S.E.2d 391 (1990); State v. Auerswald, 198 Ga. App. 183 , 401 S.E.2d 27 (1990); Barton v. State, 199 Ga. App. 363 , 405 S.E.2d 92 (1991); Brantley v. State, 199 Ga. App. 623 , 405 S.E.2d 533 (1991); State v. Meredith, 206 Ga. App. 562 , 425 S.E.2d 681 (1992); Watkins v. State, 206 Ga. App. 701 , 426 S.E.2d 238 (1992); State v. Rustin, 208 Ga. App. 431 , 430 S.E.2d 765 (1993); McGarity v. State, 212 Ga. App. 17 , 440 S.E.2d 695 (1994); Vadner v. Dickerson, 212 Ga. App. 255 , 441 S.E.2d 527 (1994); Early v. State, 218 Ga. App. 869 , 463 S.E.2d 706 (1995); Mobley v. State, 219 Ga. App. 789 , 466 S.E.2d 669 (1996); Lee v. State, 224 Ga. App. 542 , 481 S.E.2d 264 (1997); Hall v. State, 241 Ga. App. 454 , 525 S.E.2d 759 (1999); Long v. State, 241 Ga. App. 370 , 526 S.E.2d 85 (1999); Beasley v. State, 244 Ga. App. 836 , 536 S.E.2d 825 (2000); Carroll v. State, 252 Ga. App. 39 , 554 S.E.2d 560 (2001); Merritt v. State, 254 Ga. App. 788 , 564 S.E.2d 3 (2002); McKinney v. State, 261 Ga. App. 218 , 582 S.E.2d 463 (2003); James v. State, 274 Ga. App. 498 , 618 S.E.2d 133 (2005); Hill v. State, 315 Ga. App. 833 , 729 S.E.2d 1 (2012); Davis v. State, 323 Ga. App. 266 , 746 S.E.2d 890 (2013); Bighams v. State, 296 Ga. 267 , 765 S.E.2d 917 (2014); Gordon v. Caldwell, 303 Ga. 715 , 814 S.E.2d 680 (2018).

Limitation Period Application

Judge may charge four-year statute. - Trial judge's charge on four-year statute of limitations pursuant to this section did not create harmful error even though the requisites for the offense had changed less than four years ago since all evidence showed the crime, if committed, was committed after those changes. Almond v. State, 128 Ga. App. 758 , 197 S.E.2d 836 (1973).

Misstatement of limitation period. - Reversal was not warranted when the trial court misstated the applicable statute of limitations for child molestation because a correct statement would not have changed the result and harm to the defendant was not established. Arnold v. State, 236 Ga. App. 380 , 511 S.E.2d 219 (1999), aff'd, 271 Ga. 780 , 523 S.E.2d 14 (1999).

Even though the trial court erred in charging the jury that the statute of limitations for incest is seven years, the error was harmless because the defendant's acts of incest occurred well within the applicable four-year limitation period. Wiser v. State, 242 Ga. App. 593 , 530 S.E.2d 278 (2000).

No evidence concerning DNA presented. - Trial court did not err in granting the defendant's plea in bar because the state failed to meet the state's burden to invoke O.C.G.A. § 17-3-1(d) , as the state presented no evidence whatsoever at the plea in bar hearing concerning the DNA evidence and what the evidence would have established. State v. Watson, 340 Ga. App. 678 , 798 S.E.2d 295 (2017).

Seven year statute of limitations. - When the victim was born on August 19, 1982, the evidence showed that the molestations began when the victim was five or six while the victim lived in a Gwinnett County apartment, and the mother testified that they lived in Gwinnett from 1986 to 1990, the evidence authorized the determination that the acts of molestation charged occurred in Gwinnett after July 1, 1987, and within the applicable seven years statute of limitations. Thompson v. State, 212 Ga. App. 175 , 442 S.E.2d 771 (1994).

Under the former version of O.C.G.A. § 17-3-1 , it was error to convict the defendant for acts of child molestation that allegedly occurred after the victim turned 14 years old when the indictment against the defendant was returned six months beyond the four years after the victim turned 16. However, for acts that occurred while the victim was 13, the seven-year statute of limitations period applied and the indictment was returned within that time period, so the defendant was ordered retried on charges regarding acts occurring while the victim was 13; since the exact dates of the offenses were not material allegations in the indictment, those dates could be proved as of any time within the applicable statute of limitations. Tompkins v. State, 265 Ga. App. 760 , 595 S.E.2d 599 (2004).

Trial court properly granted the defendant's plea in bar on statute of limitations grounds as to the charges against the defendant for armed robbery and kidnapping with bodily injury; a seven-year statute of limitations applied to those offenses, the record showed that the defendant was indicted for them more than seven years after the alleged crimes occurred, there was no tolling of the applicable limitations period, and there was also no reason for the trial court to rule that the statute of limitations issue regarding those offenses should be submitted to the jury. Jenkins v. State, 278 Ga. 598 , 604 S.E.2d 789 (2004).

Because an underage sexual abuse victim did not report molestation by the defendant until December 2001, the seven-year statute of limitations did not even begin to run until that time, pursuant to O.C.G.A. §§ 17-3-1(c) and 17-3-2.1(a) ; further, the defendant's own statement that the defendant only knew the victim for two or three years would have been sufficient to show that the molestation took place at some point within the limitations period. Porter v. State, 270 Ga. App. 860 , 608 S.E.2d 315 (2004).

Trial court's denial of defendant's motion for a directed verdict of acquittal, pursuant to O.C.G.A. § 17-9-1 , on two counts of child molestation in violation of O.C.G.A. § 16-6-4 , was proper because the evidence of the defendant's inappropriate sexual abuse of the victim, defendant's son, sufficiently placed the dates of the charged offenses within the seven-year limitations period of O.C.G.A. §§ 17-3-1(c) and 17-3-2.1(a)(5). Allen v. State, 275 Ga. App. 826 , 622 S.E.2d 54 (2005).

Trial court erred in dismissing the counts of the indictment charging the defendant with aggravated child molestation, child molestation, and statutory rape with a child under the age of 16 because the indictment sufficiently invoked the tolling provision of O.C.G.A. § 17-3-2.1 ; pursuant to O.C.G.A. § 17-3-1(c) , the state had seven years to indict the defendant, and the defendant was indicted within seven years. State v. Godfrey, 309 Ga. App. 234 , 709 S.E.2d 572 (2011).

Trial court did not err in granting the defendant's plea in bar to dismiss the counts of an indictment charging the defendant with child molestation and aggravated child molestation to a child under the age of 14 because the state failed to indict the defendant within the limitation period, O.C.G.A. § 17-3-1(c) ; because the state did not allege that the victim was under the age of 16, the tolling provision of O.C.G.A. § 17-3-2.1 was not invoked. State v. Godfrey, 309 Ga. App. 234 , 709 S.E.2d 572 (2011).

Trial court did not abuse the court's discretion in denying the defendant's motion to dismiss an indictment charging the defendant with armed robbery, O.C.G.A. § 16-8-41 , for a violation of the defendant's right to due process because the defendant failed to show that the defense was prejudiced by the six year delay between the commission of the crime and the defendant's arrest or that the state deliberately delayed the arrest to obtain a tactical advantage; the defendant was arrested and indicted for armed robbery, a noncapital felony, within the applicable seven-year statute of limitation, O.C.G.A. §§ 16-8-41 (a) and 17-3-1(c) . Billingslea v. State, 311 Ga. App. 490 , 716 S.E.2d 555 (2011).

Four year statute of limitations. - Trial court properly granted the defendant's plea in bar concerning the burglary, aggravated assault, and firearm possession charges as the state's prosecution against the defendant on those charges was barred by the applicable four-year statute of limitations regarding those offenses since the record showed that more than seven years passed between the time the crimes occurred and the state's indictment of the defendant on those charges, and no showing was made that the applicable statute of limitations was tolled; further, since the applicable statute of limitations barred those actions, the trial court erred in finding that the statute of limitations issue should be submitted to the jury. Jenkins v. State, 278 Ga. 598 , 604 S.E.2d 789 (2004).

Conviction for criminal reproduction of recorded material in violation of O.C.G.A. § 16-8-60(b) was not time-barred under O.C.G.A. § 17-3-1(c) ; the defendant was observed committing the crime on May 22, 2004, when illegally recorded material was found in the defendant's car, and a superseding indictment was issued on February 7, 2006. Hayward-El v. State, 284 Ga. App. 125 , 643 S.E.2d 242 (2007).

Because DUI was a predicate offense set out in the indictment against the defendant only as an element of the offense of vehicular homicide, in violation of O.C.G.A. § 40-6-393(a) , and not as a separate crime for which the defendant risked a separate criminal liability, a trial court did not err by denying the defendant's plea in bar because, as a felony offense, prosecution on the vehicular homicide counts were commenced within four years after the commission of the crime as required by O.C.G.A. § 17-3-1(c) ; the expiration of the limitations period for the driving under the influence counts did not preclude a prosecution for vehicular homicide. Leachman v. State, 286 Ga. App. 708 , 649 S.E.2d 886 (2007), cert. denied, No. S07C1816, 2007 Ga. LEXIS 768 (Ga. 2007).

Defendant was properly denied a motion for a directed verdict of acquittal based on the expiration of the statute of limitations under O.C.G.A. § 17-3-1 as the charge of theft by deception was a felony rather than a misdemeanor under O.C.G.A. § 16-8-12 based on the evidence that more than $500 was taken and, thus, a four-year statute of limitations applied; the defendant should have made a special plea in bar prior to the trial. Parks v. State, 294 Ga. App. 646 , 669 S.E.2d 684 (2008).

Trial court did not err in granting the defendant's plea in bar based upon the running of the statute of limitations, O.C.G.A. § 17-3-1(c) , because no valid indictment was filed within four years of the date the alleged victim learned of the defendant's actions when the first indictment against the defendant alleged only one crime and did not inform the defendant of all the charges the defendant had to defend against at trial and was not specific enough to protect the defendant from multiple prosecutions; the state could not allege a single defective charge of theft by taking that could have been barred by the statute of limitation and upon the statute's dismissal inflate that single, defective one count indictment to one alleging 31-counts, and the second indictment would impermissibly broaden and substantially amend the first indictment. State v. Bair, 303 Ga. App. 183 , 692 S.E.2d 806 (2010).

State must commence prosecutions for theft by taking within four years of the commission of the crimes because the four-year limitation period does not include any period in which the crimes were unknown by the state, but the knowledge of someone injured by the crime may be imputed to the state for purposes of determining if the exception to the statute applies; when the state seeks to rely on an exception to the statute, the state must allege the exception in the indictment State v. Bair, 303 Ga. App. 183 , 692 S.E.2d 806 (2010).

Defendant's prosecution for the crimes of false imprisonment, O.C.G.A. § 16-5-41 , and kidnapping, O.C.G.A. § 16-5-40(a) , were barred by the statute of limitations, O.C.G.A. § 17-3-1 , because the state did not indict the defendant on those charges until after the four-year statute of limitations ran; the state's decision to reissue the indictment to include the false imprisonment and kidnapping counts substantially amended the original charges because those offenses contained elements separate and distinct from any of the crimes charged in the original indictment. Martinez v. State, 306 Ga. App. 512 , 702 S.E.2d 747 (2010).

Trial court correctly concluded that the four-year statute of limitation contained in O.C.G.A. § 17-3-1(c) was applicable and that the state failed to plead and prove that the tolling provisions of O.C.G.A. § 17-3-2.2 had been triggered. Consequently, the trial court did not err in granting defendants' plea in bar. State v. Mullins, 321 Ga. App. 671 , 742 S.E.2d 490 (2013).

Defendant's convictions for theft by conversion and a RICO violation were reversed because the state failed to carry the state's burden to prove that the defendant was indicted on the counts within the applicable statutes of limitation as the evidence showed that the victims, and therefore the state, had actual knowledge of the offenses more than five years prior to the June 12, 2009 indictment, and the state produced no evidence or argument to the contrary. Jannuzzo v. State, 322 Ga. App. 760 , 746 S.E.2d 238 (2013).

Indictment filed within 15 year statute of limitations. - With regard to a defendant's conviction for forcible rape of the defendant's child during the time the child was 13 through 15 years of age, the trial court correctly concluded that the state had 15 years from the victim's 16th birthday on January 12, 1995, or until January 12, 2010, to prosecute the case; therefore, no ex post facto violation occurred since the indictment was filed on January 8, 2008. Duke v. State, 298 Ga. App. 719 , 681 S.E.2d 174 (2009), cert. denied, No. S09C1866, 2010 Ga. LEXIS 31 (Ga. 2010).

Two year statute of limitations. - Prosecution of a defendant for speeding and driving with a suspended tag was not barred by the limitations period contained in O.C.G.A. § 17-3-1(d) because the prosecution was commenced under the Uniform Traffic Citations within the two-year period following the commission of the traffic offenses. Chism v. State, 295 Ga. App. 776 , 674 S.E.2d 328 (2009).

State could prosecute a count of the indictment under an amended accusation because the indictment was amended before the expiration of the two-year statute of limitation, O.C.G.A. § 17-3-1(d) . Sevostiyanova v. State, 313 Ga. App. 729 , 722 S.E.2d 333 , cert. denied, No. S12C0968, 2012 Ga. LEXIS 612 (Ga. 2012).

Allegation of molestation of a child under 16 sufficient to invoke tolling. - Indictment alleging the molestation of a child under the age of 16 sufficiently invoked the statute of limitation tolling provision set forth in O.C.G.A. § 17-3-2.1 . Lyde v. State, 311 Ga. App. 512 , 716 S.E.2d 572 (2011).

Victim's knowledge imputable to state. - If the victim's knowledge of alleged sexual offenses committed by the defendant was imputable to the state, the statute of limitations was not tolled due to the victim's infancy, the victim's lack of awareness of the criminality of the defendant's alleged conduct, and/or the victim's purported fear of the defendant. Sears v. State, 182 Ga. App. 480 , 356 S.E.2d 72 (1987).

In a prosecution of a corrections officer on charges of sodomy and contact with an inmate, the victim's knowledge was imputable to the state to start the running of the statute of limitations even though the victim was an inmate and was a party to the crimes by willingly participating in the activities. Lee v. State, 211 Ga. App. 112 , 438 S.E.2d 108 (1993).

Because the victim's knowledge was imputed to the state and since the last act occurred on or before May 1985, defendant's indictment in 1993, when the victim was only 12 years old, was untimely and required reversal of the defendant's conviction. It is unlikely a victim that young would have any concept they were the victim of a crime and would at most understand that the defendant hurt them; yet through a legal fiction the courts must assume the state had knowledge of these crimes at that time. Johnston v. State, 213 Ga. App. 579 , 445 S.E.2d 566 (1994).

Effect of subsequent reduction of offense. - Because the applicable law relevant to a crime is the law as the law existed at the time the crime occurred, and the theft of $350 was a felony with a four-year statute of limitations when the theft was committed, the crime remains such a felony with that statute of limitations despite the subsequent reduction of the offense to a misdemeanor with a two-year statute of limitations. State v. Williams, 172 Ga. App. 708 , 324 S.E.2d 557 (1984).

Thirteen month preindictment delay not denial of due process. - Absent a showing of actual prejudice, a 13 month preindictment delay which caused a defendant to be unable to remember where the defendant was or what the defendant was doing on the dates of the alleged offense is insufficient to show a denial of due process. Hardwick v. State, 158 Ga. App. 154 , 279 S.E.2d 253 (1981).

O.C.G.A. § 1-3-1(d)(3) did not apply in a criminal prosecution. - In a prosecution of a county deputy for sexual battery and false imprisonment, an indictment filed on May 30, 2014, two years after the incidents that took place on May 30, 2012, was filed a day after the expiration of the statute of limitation, O.C.G.A. § 17-3-1(e) ; O.C.G.A. § 1-3-1(d)(3) did not apply in a criminal prosecution. State v. Dorsey, 342 Ga. App. 188 , 802 S.E.2d 61 (2017).

State failed to prove a tolling of the statute of limitation. - When there was no showing that the crimes charged in the earlier accusation arose out of the same conduct which gave rise to the offenses alleged in the subsequent accusation, the state failed to prove the statute of limitation was tolled by an amendment to an earlier accusation. Tarver v. State, 198 Ga. App. 634 , 402 S.E.2d 365 (1991).

State argued that O.C.G.A. § 17-3-1(c) , the four-year statute of limitation for conspiracy to defraud the state, O.C.G.A. § 16-10-21 , and conspiracy in restraint of free and open competition, O.C.G.A. § 16-10-22 , was tolled under O.C.G.A. § 17-3-2(2) until the state learned of the conspiracy. The defendants' pleas in bar were properly granted as the evidence was sufficient to establish that a defendant's supervisor, a state employee, was aware of the crimes over four years before the defendants were indicted, and the supervisor's knowledge was imputed to the state. State v. Robins, 296 Ga. App. 437 , 674 S.E.2d 615 (2009).

State argued that O.C.G.A. § 17-3-1 , the statute of limitation for conspiracy charges, was tolled under O.C.G.A. § 17-3-2(2) until the state learned of the conspiracy after receiving an open records request. The defendants' pleas in bar were properly granted as the state had the burden to prove the date the state received the open records request, but failed to do so. State v. Robins, 296 Ga. App. 437 , 674 S.E.2d 615 (2009).

DNA-identification tolling provision did not apply because it expressly provided that it applied to crimes that occurred on or after July 1, 2002, and the offenses at issue occurred in 1994. Beavers v. State, 345 Ga. App. 870 , 815 S.E.2d 223 (2018).

Continuation of original prosecution. - Trial court did not err in denying the defendant's plea in bar on the ground that the statute of limitation for the two amended counts for driving under the influence of alcohol expired because the amended accusations did not commence a new prosecution, but rather, constituted a continuation of the original prosecution. Barghi v. State, 334 Ga. App. 409 , 779 S.E.2d 373 (2015), cert. denied, No. S16C0427, 2016 Ga. LEXIS 235 (Ga. 2016).

Limitations period properly tolled. - Because the statute of limitations as to two counts of theft by receiving was tolled during the period in which the person committing the crimes was unknown, and knowledge was not imputed to the state during this time, the prosecution of those counts was not time-barred. English v. State, 288 Ga. App. 436 , 654 S.E.2d 150 (2007).

As the evidence established that a defendant's employer first learned of the defendant's alleged false expense reports and improper payments to the defendant's spouse in an audit conducted less than four years before the state indicted the defendant for felony theft, O.C.G.A. § 17-3-1(c) 's four-year statute of limitations was tolled by O.C.G.A. § 17-3-2(2) . The tolling period ended when the employer actually learned of the crime, not when the employeer could have discovered the crime through the exercise of reasonable diligence. State v. Campbell, 295 Ga. App. 856 , 673 S.E.2d 336 (2009), cert. denied, No. S09C0965, 2009 Ga. LEXIS 380 (Ga. 2009).

Because the existence, execution, and timing of an agreement that allegedly violated the bribery statute were unknown to the state before February 2010, the statute of limitations for the bribery charge was tolled until it was discovered; and the trial court did not err by denying the defendant's plea in bar based on the expiration of the statute of limitation. Kenerly v. State, 325 Ga. App. 412 , 750 S.E.2d 822 (2013).

Because the tolling exception to the statute of limitation applied to the failure to disclose a financial interest charge, and the prosecution for that charge was timely commenced after the crime was discovered, the trial court did not err by denying the defendant's plea in bar based on the expiration of the statute of limitation. Kenerly v. State, 325 Ga. App. 412 , 750 S.E.2d 822 (2013).

Statute of limitations issue properly submitted to jury. - After the investigating police officer testified that they could not identify the suspect in the defendant's prosecution for rape, the trial court properly submitted a statute of limitations issue to the jury; although the defendant argued that the victim knew the defendant and that they had a consensual sexual relationship, the jury believed otherwise, as was the jury's privilege. McKeehan v. State, 274 Ga. App. 14 , 616 S.E.2d 489 (2005).

Limitation period need not be alleged in indictment; Grizzard no longer applicable. - Because the seven-year period provided for by O.C.G.A. § 17-3-1(c) is a general statute of limitations governing a particular class of criminal cases - non-capital felonies committed against victims under 14 years of age - and not an exception to another statute of limitations, it need not be alleged in an indictment in order to be applicable to a particular prosecution. To the extent that the opinion in Grizzard v. State 258 Ga. App. 124 , 572 S.E.2d 760 , (2002), reaches a contrary conclusion, it is hereby disapproved. Tompkins v. State, 265 Ga. App. 760 , 595 S.E.2d 599 (2004).

Date not specifically alleged in indictment. - In a child abuse case, trial counsel was not ineffective for failing to file a special demurrer to establish the date of the crime as a material allegation of the indictment because the exact date was not a material allegation of the indictment and the evidence showed that the victim was beaten by the defendant on October 2, 2008, that the co-defendant beat the victim with belts on other occasions, and other evidence showed that the victim's scars were a year old or less, therefore, the state proved that child cruelty occurred within the statute of limitation. Moore v. State, 319 Ga. App. 766 , 738 S.E.2d 348 (2013).

No extension of time. - Georgia Court of Appeals properly concluded that O.C.G.A. § 17-3-3 did not give the state six additional months to obtain a second indictment against the appellee for felony vehicular homicide (FVH) after the state's unsuccessful attempt to appeal the dismissal of the FVH count of the first indictment as the appeal did not stay any time limit and the FVH count of the second indictment did not relate back to the date of the first indictment since only a misdemeanor was pending at that point. State v. Outen, 296 Ga. 40 , 764 S.E.2d 848 (2014).

Decisions Under Former Code 1933, § 27-601 After Enactment of Ga. L. 1968, p. 1249

Editor's notes. - Although former Code 1933, § 27-601, was superseded and implicitly repealed in 1968 by former Code 1933, § 26-502, both sections are similar and some cases after 1968 cite both sections or § 27-601 only. Section 27-601 was explicitly repealed by amendment of the 1981 Code. Hence, cases decided after 1968 which cite § 27-601 only or with § 26-502 are included in a separate Code section.

Period of statute of limitations. - In criminal cases, the statute of limitations runs, subject to special circumstances, from the time of the criminal act to the time of indictment, not from the time of the act to time of the trial. Hall v. Hopper, 234 Ga. 625 , 216 S.E.2d 839 (1975).

Burden on state to prove date or exception. - Burden is upon the state to prove that a crime occurred within the statute of limitations; or, if an exception to the statute is alleged, to prove that the case properly falls within the exception. State v. Tuzman, 145 Ga. App. 481 , 243 S.E.2d 675 (1978), overruled on other grounds by State v. Outen, 289 Ga. 579 , 714 S.E.2d 581 (2011).

Statute starts to run when crime known. - Key to determining when the statute of limitation begins to run is to find when the offender or offense becomes known. State v. Brannon, 154 Ga. App. 285 , 267 S.E.2d 888 (1980).

Crime known by victim. - When the offense is known to the person injured by the offense, the statute begins to run. State v. Brannon, 154 Ga. App. 285 , 267 S.E.2d 888 (1980).

Crime known by prosecutor or interested party. - Statute of limitations does not begin to run in favor of the offender until the offense is known to the prosecutor, or to someone interested in the prosecution, or to someone injured by the offense. State v. Brannon, 154 Ga. App. 285 , 267 S.E.2d 888 (1980).

Procedures for hearing pleas on statute. - Pretrial hearing on a plea in bar is an appropriate procedure for handling the plea, or statute of limitation questions may properly be submitted to the jury for resolution. State v. Tuzman, 145 Ga. App. 481 , 243 S.E.2d 675 (1978), overruled on other grounds by State v. Outen, 289 Ga. 579 , 714 S.E.2d 581 (2011).

Nolle prosequi to indictment. - Fact that nolle prosequi has been entered to indictment before it has been submitted to the jury is not sufficient ground to sustain plea in bar to reindictment for same offense. Bowens v. State, 157 Ga. App. 334 , 277 S.E.2d 326 (1981).

Decisions Under Former Code 1933, § 27-601 Before Enactment of Ga. L. 1968, p. 1249

Homicide indictment must allege date of death. - Unless the common-law rules are relaxed, an indictment for homicide must allege the date of death of the victim for the reason that it must appear from the indictment that the death occurred within a year and a day from the date of the infliction of the injury. Head v. State, 68 Ga. App. 759 , 24 S.E.2d 145 (1943).

Date must be within year and day of wound. - If it does not appear that the death of the person charged to have been killed happened within a year and a day after the wound was given, the indictment will be deemed fatally defective since when death does not ensue within such time the law presumes that death proceeded from some other cause. Head v. State, 68 Ga. App. 759 , 24 S.E.2d 145 (1943).

Indictment stating victim killed on date is sufficient. - If the indictment alleges that a person was killed on a date specified, then the indictment alleges that the person died on that date. Head v. State, 68 Ga. App. 759 , 24 S.E.2d 145 (1943).

Applicability of statute to receiving stolen goods. - Indictment and guilty plea of the principal thieves is by itself a sufficient allegation that the statute of limitations is not operative in a prosecution for receiving stolen goods. Sampson v. State, 60 Ga. App. 512 , 4 S.E.2d 290 (1939).

State not limited to proving one transaction in offense. - When the accusation charges the offense generally, the state need not rest the state's case on proof of a single transaction, but may prove or attempt to prove any number of transactions of the character charged in the accusation and included within the indictment's terms. Drummond v. State, 87 Ga. App. 105 , 73 S.E.2d 43 (1952).

State need not prove exact date in accusation. - While an allegation of time is necessary to make a valid accusation, it is the general rule that proof that the crime was committed on the day alleged is not necessary. Love v. State, 70 Ga. App. 40 , 27 S.E.2d 337 (1943).

State is not confined to the date alleged in the accusation in proving the crime, but may prove it as of any date within the period of limitations. Drummond v. State, 87 Ga. App. 105 , 73 S.E.2d 43 (1952).

State may prove crime occurred any time within two years before indictment. - Although an indictment charged defendant with having seduced the prosecutrix on a specific date, under such an indictment the state could prove that the act of seduction occurred at any time within two years prior to the bringing of the indictment. Martin v. State, 53 Ga. App. 213 , 185 S.E. 387 (1936).

On trial of a misdemeanor, the case may be made out by proof that the accused committed the act which constitutes the offense charged at any time within two years previous to the return of the indictment. Austin v. State, 104 Ga. App. 795 , 122 S.E.2d 926 (1961).

No retrial for same misdemeanor. - When an indictment is for violation of a prohibition statute, a misdemeanor, the statute of limitations governing the case is two years, and the state is not confined to the day named in the indictment, but may prove the commission of the offense at any time within two years prior to the return of the indictment, and whether acquitted or convicted, the accused cannot be tried again for such an offense committed during the period of limitation governing the case on trial. Heard v. State, 79 Ga. App. 202 , 53 S.E.2d 233 (1949).

If rape shown within seven years, charge citing unlimited time harmless. - While the period of limitation for rape is seven years, and the judge erred in charging the jury that if the offense was otherwise proved it would be sufficient to show that it was committed at any time before return of the indictment, since the evidence showed clearly and without dispute that if the defendant was guilty at all, the offense was committed within less than seven years before return of the indictment, the error was harmless. Pylant v. State, 191 Ga. 587 , 13 S.E.2d 380 (1941).

Court need not instruct on two-year limitation if indictment and evidence shows within two years. - When indictment charges that on a date certain an offense was committed, and uncontradicted proof shows that the offense was then committed, and the date charged and proved was, mathematically, within the statute of limitations, and no other acts or dates were involved in the evidence, it was not error for the court to fail to instruct the jury that the jury must, to convict, find that the offense was committed within two years prior to the return of the indictment. Ridley v. State, 66 Ga. App. 658 , 19 S.E.2d 51 (1942).

Decisions Under Former Penal Code 1910, § 30

Retrial justified if state did not prove indictment filed within statute. - When the indictment alleged a misdemeanor, and the state failed to carry the burden of proof that the indictment was found and filed in the superior court within two years after the commission of the offense charged, the court erred in overruling the motion for a new trial. Sirmans v. State, 46 Ga. App. 784 , 169 S.E. 243 (1933).

Abandonment continues if no support. - Crime of abandonment begins and continues as long as there is a failure on the part of the parent to perform the parent's duty, and consequent dependence of the child. Lomax v. State, 44 Ga. App. 500 , 162 S.E. 395 (1931).

Initial abandonment date irrelevant. - If it appears that an absent father has for two years immediately preceding the finding of the accusation against him failed and refused to provide for his dependent child, the time when the original separation took place is entirely immaterial; the continuing dependency of the child vitalizes the offense, and the fact that the absence, and even the dependency, began more than two years prior to the accusation, affords no ground for the interposition of the statute of limitations. Lomax v. State, 44 Ga. App. 500 , 162 S.E. 395 (1931).

Father's temporary return does not prevent accusation after two years. - Abandonment is a continuing offense, at least until the defendant has once been convicted, and the statute of limitations will not relieve a father who abandoned his child and failed to supply the child's needs more than two years prior to the date of the accusation, but who before that date temporarily returned to the child and for a time performed his parental duties, but who subsequently and before the finding of the accusation again left the child and thereafter failed to supply the child's necessities. Lomax v. State, 44 Ga. App. 500 , 162 S.E. 395 (1931).

Jury determination that defendant operated lottery justified. - Jury were amply authorized to find, even though the lottery tickets bore no date, that at the time of the arrest the defendant was engaged as a banker or headquarters person in the operation and maintenance of a lottery known as the numbers game. Christian v. State, 71 Ga. App. 350 , 30 S.E.2d 832 (1944).

Exception to limitation must be alleged and proved. - In a criminal case, when an exception is relied upon to prevent the bar of the statute of limitations, the exception must be alleged and proved. Bazemore v. State, 34 Ga. App. 773 , 131 S.E. 177 (1926).

General Consideration

Knowledge of victim as knowledge of state. - If a crime against the public involves also a wrong upon an individual, such as an assault or any other crime in which an individual, who is not a party to the crime suffers, the knowledge of the victim is the knowledge of the state, even though the victim does not represent the state in an official capacity. Womack v. State, 260 Ga. 21 , 389 S.E.2d 240 (1990).

Knowledge placed at issue by O.C.G.A. § 17-3-2(2) is the knowledge of the state, which knowledge includes that imputed to the state through the knowledge not only of the prosecution, but also includes the knowledge of someone interested in the prosecution, or injured by the offense. Thus, the knowledge of a victim of a crime or of a law enforcement officer is imputed to the state. Duncan v. State, 193 Ga. App. 793 , 389 S.E.2d 365 (1989); Greenhill v. State, 199 Ga. App. 218 , 404 S.E.2d 577 , cert. denied, 199 Ga. App. 906 , 404 S.E.2d 557 (1991).

When the offense is known by an injured party, the statute begins to run. If a crime against the public involves also a wrong upon an individual, who is not a party to the crime, the knowledge of the victim is imputed to the state, even though the victim does not represent the state in an official capacity. Lowman v. State, 204 Ga. App. 655 , 420 S.E.2d 94 (1992).

Defendant's convictions for theft by conversion and a RICO violation were reversed because the state failed to carry the state's burden to prove that the defendant was indicted on the counts within the applicable statutes of limitation as the evidence showed that the victims, and therefore the state, had actual knowledge of the offenses more than five years prior to the June 12, 2009 indictment, and the state produced no evidence or argument to the contrary. Jannuzzo v. State, 322 Ga. App. 760 , 746 S.E.2d 238 (2013).

Trial court did not err in granting the plea in bar as the tolling provision found in O.C.G.A. § 17-3-2(2) did not apply given that the victim testified that the defendant told the victim the defendant's name and there was some indication that the victim had been given the defendant's telephone number and, thus, the victim's knowledge of the perpetrator was imputed to the state. State v. Watson, 340 Ga. App. 678 , 798 S.E.2d 295 (2017).

Escape and concealment before indictment tolls statute. - If after the commission of the crime the offender is arrested, and then escapes and conceals oneself before indictment and avoids arrest, such concealment still will suspend the statute of limitations. Dennard v. State, 154 Ga. App. 283 , 267 S.E.2d 886 (1980).

Paragraph (2) inapplicable to acts between 1968 and November 1, 1982. - Tolling provision of O.C.G.A. § 17-3-2(2) does not apply to any acts occurring between 1968, when the statute provided for tolling only for periods when the person committing the crime was unknown and November 1, 1982, when the provision was reenacted to include the provision that the crime be unknown, because it was not in effect during this period. Adcock v. State, 194 Ga. App. 627 , 391 S.E.2d 438 , aff'd, 260 Ga. 302 , 392 S.E.2d 886 (1990).

O.C.G.A. § 17-3-2(2) requires actual knowledge. - Constructive knowledge was not sufficient; thus, the state was not charged with knowledge of the identity of an offender who committed a crime simply because it lifted a fingerprint from the crime scene as the fingerprint was not matched to the defendant until several years later. Beasley v. State, 244 Ga. App. 836 , 536 S.E.2d 825 (2000).

Prosecution barred after nolle prosequi entered and not thereafter vacated. - After the defendant's plea to various criminal charges was vacated because the defendant was found to have lacked the requisite mental capacity to have made a knowing and voluntary plea and the defendant was to be tried on those charges, it was found that the trial court lacked jurisdiction over other charges that had been nolle prossed by the state at the time of the plea entry and, accordingly, defendant could not be tried thereon; it was noted that the term of the trial court had expired, the order of nolle prosequi had not been vacated during that term, the limitations period had expired, and the state had not sought to refile those charges in a timely manner as provided for in O.C.G.A. §§ 17-3-2 and 17-3-3 . Carlisle v. State, 277 Ga. 99 , 586 S.E.2d 240 (2003).

State had no actual knowledge of criminal wrongdoing. - Superior court did not err in failing to grant the defendant's plea in bar, motion to dismiss, and general demurrer to prohibit prosecution of the non-murder counts in the indictment as barred by the applicable statutes of limitation because the record did not support a finding that the state had actual knowledge that there was criminal wrongdoing resulting in the fatality, much less that the defendant would be charged as the perpetrator of the victim's death, until the superseding medical examiner's report. Higgenbottom v. State, 290 Ga. 198 , 719 S.E.2d 482 (2011).

Statute of limitations not tolled. - Trial court erred by denying the defendant's plea in bar because the statute of limitation was not tolled since the heirs knew as early as March 1, 1985, that the defendant in the judicial proceeding in the probate court knowingly and wilfully made false statements material to the issue before the probate court. Both the person committing the crime and the crime were known and therefore the period of limitations was not tolled. Lowman v. State, 204 Ga. App. 655 , 420 S.E.2d 94 (1992).

Trial court did not err in granting the defendant's plea in bar based on the defendant's statute of limitation argument regarding the non-murder offenses charged against the defendant as the state did not show that the applicable statutes of limitations were tolled because the state did not show that the defendant absconded from the state or hid to avoid arrest; indeed, the state admitted that the defendant was often a public resident of Georgia and that the defendant had been in jail in Georgia for part of what the state argued should have been the tolling period. Jenkins v. State, 278 Ga. 598 , 604 S.E.2d 789 (2004).

Although an applicable statute of limitation was tolled in a case in which the person committing the crime was unknown, the trial court did not err in granting the defendant's plea in bar regarding the non-murder offenses charged against the defendant based on the defendant's argument that they were barred under the applicable statutes of limitations, as enough evidence existed to show that the defendant was the perpetrator of the non-murder crimes and, thus, those statutes of limitations were not tolled. Jenkins v. State, 278 Ga. 598 , 604 S.E.2d 789 (2004).

State argued that O.C.G.A. § 17-3-1(c) , the four-year statute of limitation for conspiracy to defraud the state, O.C.G.A. § 16-10-21 , and conspiracy in restraint of free and open competition, O.C.G.A. § 16-10-22 , was tolled under O.C.G.A. § 17-3-2(2) until the state learned of the conspiracy. The defendants' pleas in bar were properly granted as the evidence was sufficient to establish that a defendant's supervisor, a state employee, was aware of the crimes over four years before the defendants were indicted, and the supervisor's knowledge was imputed to the state. State v. Robins, 296 Ga. App. 437 , 674 S.E.2d 615 (2009).

State argued that O.C.G.A. § 17-3-1 , the statute of limitation for conspiracy charges, was tolled under O.C.G.A. § 17-3-2(2) until the state learned of the conspiracy after receiving an open records request. The defendants' pleas in bar were properly granted as the state had the burden to prove the date the state received the open records request, but failed to do so. State v. Robins, 296 Ga. App. 437 , 674 S.E.2d 615 (2009).

Statute of limitations as to the charge brought against the defendant 17 years after the crime occurred was not tolled by the "person unknown" exception in O.C.G.A. § 17-3-2(2) because the evidence unequivocally showed that the state had actual knowledge of the defendant's identity as one of two suspects almost immediately after the crime occurred and was the prime suspect. State v. Boykin, 320 Ga. App. 9 , 739 S.E.2d 16 (2013).

Since two clients did not discover the defendant's theft at the time the theft occurred, the statute of limitations was tolled until discovery and those counts were not barred by the limitations period. Pennington v. State, 323 Ga. App. 92 , 746 S.E.2d 768 (2013).

Trial court did not err in granting the defendant's plea in bar, because the Department of Labor's system identified the defendant as having received unemployment benefits while working more than four years before the case was filed and the period was not tolled while the Department was awaiting the employer's response to its inquiry as to whether the defendant was working during the relevant time period. State v. Bragg, 332 Ga. App. 608 , 774 S.E.2d 182 (2015).

Statutory period was not tolled under the person-unknown tolling provision because the defendant was identified as the primary suspect in the immediate aftermath of the attack. Beavers v. State, 345 Ga. App. 870 , 815 S.E.2d 223 (2018).

Statute of limitation tolled. - Trial court did not err in denying the defendant's motion for a judgment of acquittal on the criminal charges against the defendant of concealing a death and theft by taking as the evidence showed that law enforcement officers were not aware for many months or even a couple of years that such crimes had been committed, and, thus, defendant did not show that defendant was indicted outside of the applicable statute of limitation, which only began to run at the time law enforcement officers were aware that those crimes had been committed. James v. State, 274 Ga. App. 498 , 618 S.E.2d 133 (2005).

Because the statute of limitations as to two counts of theft by receiving was tolled during the period in which the person committing the crimes was unknown, and knowledge was not imputed to the state during this time, the prosecution of those counts was not time-barred. English v. State, 288 Ga. App. 436 , 654 S.E.2d 150 (2007).

As the evidence established that a defendant's employer first learned of the defendant's alleged false expense reports and improper payments to the defendant's spouse in an audit conducted less than four years before the state indicted the defendant for felony theft, O.C.G.A. § 17-3-1(c) 's four-year statute of limitations was tolled by O.C.G.A. § 17-3-2(2) . The tolling period ended when the employer actually learned of the crime, not when the employer could have discovered the crime through the exercise of reasonable diligence. State v. Campbell, 295 Ga. App. 856 , 673 S.E.2d 336 (2009), cert. denied, No. S09C0965, 2009 Ga. LEXIS 380 (Ga. 2009).

Although an indictment was not issued until fourteen years after the crimes of rape, kidnapping, and false imprisonment were committed, pursuant to O.C.G.A. § 17-3-2(2) , the limitation periods for the crimes were tolled because the defendant's identity as the perpetrator was not known either to the victim or to the state until just before the indictment was issued. Scales v. State, 310 Ga. App. 48 , 712 S.E.2d 555 (2011).

Because the existence, execution, and timing of an agreement that allegedly violated the bribery statute were unknown to the state before February 2010, the statute of limitations for the bribery charge was tolled until it was discovered; and the trial court did not err by denying the defendant's plea in bar based on the expiration of the statute of limitation. Kenerly v. State, 325 Ga. App. 412 , 750 S.E.2d 822 (2013).

Because the tolling exception to the statute of limitation applied to the failure to disclose a financial interest charge, and the prosecution for that charge was timely commenced after the crime was discovered, the trial court did not err by denying the defendant's plea in bar based on the expiration of the statute of limitation. Kenerly v. State, 325 Ga. App. 412 , 750 S.E.2d 822 (2013).

Limitations period properly tolled. - State met the state's burden of proving the applicability of the tolling statute, O.C.G.A. § 17-3-2(2) , because the state filed the state's indictment against the defendant less than four years after the victim had actual knowledge of the defendant's crime, insurance fraud in violation of O.C.G.A. § 17-3-1(c) ; the tolling period ended when an investigator obtained first-hand knowledge of the acts forming the crimes. Royal v. State, 314 Ga. App. 20 , 723 S.E.2d 118 (2012), cert. denied, No. S12C1007, 2012 Ga. LEXIS 542 (Ga. 2012).

Extension of statute of limitations. - O.C.G.A. § 17-3-3 provides an extension of the statute of limitations period and not an exception to the limitations period that must be pled in the indictment; indictment of the defendant over seven years after the commission of the crimes was proper since the charges had been nolle prossed after defendant's earlier convictions had been reversed on appeal. Sallie v. State, 276 Ga. 506 , 578 S.E.2d 444 , cert. denied, 540 U.S. 902, 124 S. Ct. 251 , 157 L. Ed. 2 d 185 (2003).

Defendant's argument that the trial court erred in determining that a superceding indictment served to toll the statutes of limitations as to Counts 2, 4, and 5 because the tolling language in those defectively referred back to Count 1, rather than the count in question, was meritless because the defendant was sufficiently apprised of all the essential elements of the charges when read as a whole, including the fact that the state intended to prove that the statutes of limitations for the crimes were tolled until 2005 pursuant to O.C.G.A. §§ 17-3-1 (c.1) and 17-3-2(2) due to the fact that the defendant's identity was unknown until that time; the superfluous language "as to count one (1)" contained in Counts 2 through 6 was not enough to confuse the defendant about the offenses or the applicable exception to the statutes of limitations, which the state intended to prove at trial. Because the state was alleging an exception to the statutes of limitations, it was not barred from proceeding against the defendant under the superceding indictment. Leftwich v. State, 299 Ga. App. 392 , 682 S.E.2d 614 (2009), cert. denied, No. S09C2013, 2009 Ga. LEXIS 710 (Ga. 2009); cert. denied, 559 U.S. 1019, 130 S. Ct. 1913 , 176 L. Ed. 2 d 386 (2010).

Limitation not tolled during pendency of previous appeal. - Running of the period of limitation was not tolled during the pendency of a previous appeal in the case sub judice since the pendency of an appeal is not among the exceptions provided by O.C.G.A. § 17-3-2 . Duncan v. State, 193 Ga. App. 793 , 389 S.E.2d 365 (1989).

Applicability to RICO prosecutions. - Pursuant to O.C.G.A. § 16-14-8(2), the five-year statute of limitation for criminal prosecution of RICO violations was tolled up to the time the victim and the state first learned of the predicate offenses. Adams v. State, 231 Ga. App. 279 , 499 S.E.2d 105 (1998).

Construction with tolling provision of O.C.G.A. § 17-3-2.2 . - Trial court erred by applying O.C.G.A. § 17-3-2.2 to the RICO and theft charges against the defendants because it was necessary for the state to show that the victim was over 65 years of age, was the principal stockholder of the corporation, was the owner of the property allegedly stolen, not the corporation, to determine the date the crime became known to the victim. Harper v. State, 292 Ga. 557 , 738 S.E.2d 584 (2013).

Cited in Holloman v. State, 133 Ga. App. 275 , 211 S.E.2d 312 (1974); State v. Shepherd Constr. Co., 248 Ga. 1 , 281 S.E.2d 151 (1981); State v. Stowe, 167 Ga. App. 65 , 306 S.E.2d 663 (1983); State v. Benton, 168 Ga. App. 665 , 310 S.E.2d 243 (1983); State v. Lowman, 198 Ga. App. 8 , 400 S.E.2d 373 (1990); State v. Meredith, 206 Ga. App. 562 , 425 S.E.2d 681 (1992); Hall v. State, 241 Ga. App. 454 , 525 S.E.2d 759 (1999); Merritt v. State, 254 Ga. App. 788 , 564 S.E.2d 3 (2002); McKinney v. State, 261 Ga. App. 218 , 582 S.E.2d 463 (2003); Tompkins v. State, 265 Ga. App. 760 , 595 S.E.2d 599 (2004); State v. Crowder, 338 Ga. App. 642 , 791 S.E.2d 423 (2016).

Decisions Under Former Code 1933, § 27-601 After Enactment of Ga. L. 1968, p. 1249

Editor's notes. - Although former Code 1933, § 27-601 was superseded and implicitly repealed in 1968 by former Code 1933, § 26-503 both sections are similar and some cases after 1968 cite both sections or § 27-601 only. Section 27-601 was explicitly repealed by enactment of the 1981 Code. Hence, cases decided after 1968 which cite § 27-601 only or with § 26-503 are included in a separate Code section.

Statute of limitations starts when crime known. - Key to determining when the statute of limitations begins to run is to find when the offender or offense became known. State v. Brannon, 154 Ga. App. 285 , 267 S.E.2d 888 (1980).

Offense known by victim. - When the offense is known to the person injured by the offense, the statute begins to run. State v. Brannon, 154 Ga. App. 285 , 267 S.E.2d 888 (1980).

Offense known by interested party. - Statute of limitations does not begin to run in favor of the offender until the offender's offense is known to the prosecutor, or to someone interested in the prosecution, or to someone injured by the offense. State v. Brannon, 154 Ga. App. 285 , 267 S.E.2d 888 (1980).

Statute of limitations ends at indictment, not trial. - In criminal cases, the statute of limitations runs, subject to special circumstances, from the time of the criminal act to the time of indictment, not from the time of the act or time of the trial. Hall v. Hopper, 234 Ga. 625 , 216 S.E.2d 839 (1975).

State must prove crime within statute or exception. - Burden is upon the state to prove that a crime occurred within the statute of limitations; or, if an exception to the statute is alleged, to prove that the case properly falls within the exception. State v. Tuzman, 145 Ga. App. 481 , 243 S.E.2d 675 (1978), overruled on other grounds by State v. Outen, 289 Ga. 579 , 714 S.E.2d 581 (2011).

Procedure for hearing statute of limitations questions. - Pretrial hearing on a plea in bar is an appropriate procedure for handling the plea, or statute of limitation questions may properly be submitted to the jury for resolution. State v. Tuzman, 145 Ga. App. 481 , 243 S.E.2d 675 (1978).

Decisions Under Former Code 1933, § 27-601 Before Enactment of Ga. L. 1968, p. 1249

State need only show prosecutor unaware of crime. - When an offense is alleged to have been unknown, the state need only show that it was unknown to the prosecutor in order to make prima facie proof of that allegation. Taylor v. State, 174 Ga. 52 , 162 S.E. 504 (1931), overruled on other grounds, Wood v. State, 219 Ga. 509 , 134 S.E.2d 8 (1963), overruled on other grounds, Moore v. State, 254 Ga. 674 , 333 S.E.2d 605 (1985).

Crime presumed within statute after grand jury presentment if no prosecutor. - In those cases when the offense is against society in general, and there is no prosecutor, the return by the grand jury of a presentment containing the exception will presumptively establish that the offense or offender was unknown until within two years before the indictment unless denied by evidence of the defendant. Walton v. State, 65 Ga. App. 124 , 15 S.E.2d 455 (1941).

Decisions Under Former Penal Code 1910, § 30

Statute does not run until proper parties aware of crime. - Statute of limitations does not begin to run in favor of the offender until the offender's offense is known to the prosecutor, or to someone interested in the prosecution, or to someone injured by the offense. Kiles v. State, 48 Ga. App. 675 , 173 S.E. 174 (1934).

Acquiring knowledge of bribe from official with special duty to report bribe. - State official, having refused offer of bribery, was in no way implicated criminally, or under any legal restraint from reporting the case or testifying therein. It was the official's duty in a private capacity, and in an official capacity, to report the offense; and, it being the official's duty, the official's knowledge was imputable to the state and was knowledge of the state in legal contemplation; and this knowledge of the state was a bar to the prosecution under a presentment dated seven years after the offense, a misdemeanor, was committed. Taylor v. State, 44 Ga. App. 64 , 160 S.E. 667 (1931), cert. dismissed, 175 Ga. 642 , 165 S.E. 733 (1932), overruled on other grounds, State v. Tyson, 544 S.E.2d 444 (Ga. 2001).

Burden on state to prove exception. - When, to relieve an accusation from the bar of the statute of limitations, a fact constituting an exception to the statute is alleged, the burden is on the state to prove the exception. Norman v. State, 44 Ga. App. 92 , 160 S.E. 522 (1931).

In a criminal case, when an exception is relied upon to prevent the bar of the statute of limitations, it must be alleged and proved. Taylor v. State, 44 Ga. App. 64 , 160 S.E. 667 (1931), cert. dismissed, 175 Ga. 642 , 165 S.E. 733 (1932), overruled on other grounds, State v. Tyson, 544 S.E.2d 444 (Ga. 2001).

Burden to show company officers unaware of misdemeanor fraud. - When from an accusation charging a misdemeanor, alleged to have been committed by defrauding a certain corporation, it appeared that the offense was committed more than two years before the date of the accusation, and it was alleged that the offense was unknown to the corporation until within the two years preceding the date of the accusation, the burden was upon the state to show that the offense was unknown until within that period to any of those officers or agents of the corporation whose knowledge would be imputable to it. Norman v. State, 44 Ga. App. 92 , 160 S.E. 522 (1931).

Shifting burden to defendant. - When it is stated that the indictment was not brought within the period of time allowed by law, because the offense or the offender was unknown, the state makes a prima facie case and shifts the burden of proof to the defendant when it is shown that the prosecutor or the party most interested did not know the offense, or the offender, as the case may be. Kiles v. State, 48 Ga. App. 675 , 173 S.E. 174 (1934).

Defendant may rebut with notoriety of crime. - When an offense is alleged to have been unknown, the state need only show that it was unknown to the prosecutor in order to make prima facie proof of that allegation. The defendant may rebut such proof by proving that the transaction alleged in the indictment as a violation of the law was known, and the general notoriety may be sufficient proof to establish the fact that it was not unknown. Norman v. State, 44 Ga. App. 92 , 160 S.E. 522 (1931).

Rebuttal with proof victim knew of crime. - Upon proof that the offense was unknown to the person aggrieved, the defendant may either show that it was known to the aggrieved person, or the defendant may show by evidence of common notoriety that the bar of the statute of limitations has attached. Kiles v. State, 48 Ga. App. 675 , 173 S.E. 174 (1934).

When it is stated that the indictment was not brought within the period of time allowed because the offense or the offender was unknown, the state makes a prima facie case and shifts the burden of proof to the defendant, when it is shown that the prosecutor or the party most interested did not know the offense, or the offender, as the case may be. Upon such proof that the offense was unknown to the person aggrieved, the defendant may either show that the offense was known to the aggrieved person, or the defendant may show by evidence of common notoriety that the bar of the statute of limitations has attached. Taylor v. State, 44 Ga. App. 387 , 161 S.E. 793 (1931).

General Consideration

O.C.G.A. § 17-3-3 intended to function solely as a savings provision, and has no application to a prosecution in which the nolle prosequi is entered over six months before the original statute of limitations expires. Kyles v. State, 254 Ga. 49 , 326 S.E.2d 216 (1985).

O.C.G.A. § 17-3-3 is a savings provision which extends the original statute of limitation for six months when a nolle prosequi is entered either after the original statute of limitation has expired, or within six months of the statute's expiration. State v. Davis, 201 Ga. App. 533 , 411 S.E.2d 555 (1991).

When new indictment may be found after nolle prosequi entered. - Under O.C.G.A. §§ 17-3-3 and 17-8-3 , a nolle prosequi may be entered by the prosecuting attorney with the consent of the court and in such a case a new indictment may be found within six months from the time the first indictment is quashed or the nolle prosequi entered. Not until the expiration of the six-month period within which a new indictment for the same offense may be preferred, or some other act or declaration which amounts to abandonment, is the prosecution at an end. Bowens v. State, 157 Ga. App. 334 , 277 S.E.2d 326 (1981).

When the defendant's plea to various criminal charges was vacated because the defendant was found to have lacked the requisite mental capacity to have made a knowing and voluntary plea and the defendant was to be tried on those charges, it was found that the trial court lacked jurisdiction over other charges that had been nolle prossed by the state at the time of the plea entry and, accordingly, the defendant could not be tried thereon; it was noted that the term of the trial court had expired, the order of nolle prosequi had not been vacated during that term, the limitations period had expired, and the state had not sought to refile those charges in a timely manner as provided for in O.C.G.A. §§ 17-3-2 and 17-3-3 . Carlisle v. State, 277 Ga. 99 , 586 S.E.2d 240 (2003).

Because the state re-indicted the defendant within six months of the entry of the nolle prosequi pursuant to O.C.G.A. § 17-3-3 , the trial court did not err in denying the defendant's plea in bar. Hicks v. State, 315 Ga. App. 779 , 728 S.E.2d 294 (2012).

Second indictment did not need to allege special exception to statute of limitations. - Trial court properly denied the defendant's motion in arrest of a judgment of conviction for burglary and theft by taking because the second indictment was filed within the six-month extension authorized by O.C.G.A. § 17-3-3 and, therefore, did not need to allege an exception to the four-year statute of limitation. Johnson v. State, 335 Ga. App. 886 , 782 S.E.2d 50 (2016).

First indictment, while perhaps not perfect in form, was not void; therefore, under O.C.G.A. § 17-3-3 , the statute of limitation was properly extended by an additional six months after the first indictment was quashed, and the state did not need to allege any exception to the limitation period in the second indictment for burglary or theft. Johnson v. State, 335 Ga. App. 886 , 782 S.E.2d 50 (2016).

Extension of statute of limitations. - O.C.G.A. § 17-3-3 provides an extension of the statute of limitations period and not an exception to the statute that must be pled in the indictment; indictment of the defendant over seven years after the commission of the crimes was proper when the charges had been nolle prossed after the defendant's earlier convictions had been reversed on appeal. Sallie v. State, 276 Ga. 506 , 578 S.E.2d 444 , cert. denied, 540 U.S. 902, 124 S. Ct. 251 , 157 L. Ed. 2 d 185 (2003).

O.C.G.A. § 17-3-3 specifies that the statute of limitations is extended six months if an indictment brought within the statute of limitations is later nolle prossed; in other words, the state may re-indict a defendant within six months after the first indictment is nolle prossed without running afoul of the statute of limitations even if the initial statute of limitations period has run. Sallie v. State, 276 Ga. 506 , 578 S.E.2d 444 , cert. denied, 540 U.S. 902, 124 S. Ct. 251 , 157 L. Ed. 2 d 185 (2003).

No extension of time. - O.C.G.A. § 17-3-3 did not alter the running of the statute of limitation because the statute had no application to a prosecution in which the charge was dismissed over six months before the original statute of limitations expires. State v. Outen, 324 Ga. App. 457 , 751 S.E.2d 109 (2013).

Georgia Court of Appeals properly concluded that O.C.G.A. § 17-3-3 did not give the state six additional months to obtain a second indictment against the appellee for felony vehicular homicide (FVH) after the state's unsuccessful attempt to appeal the dismissal of the FVH count of the first indictment as the appeal did not stay any time limit and the FVH count of the second indictment did not relate back to the date of the first indictment since only a misdemeanor was pending at that point. State v. Outen, 296 Ga. 40 , 764 S.E.2d 848 (2014).

Accusation amended before expiration of statute of limitations. - State could prosecute a count of the indictment under an amended accusation because the indictment was amended before the expiration of the two-year statute of limitation, O.C.G.A. § 17-3-1(d) . Sevostiyanova v. State, 313 Ga. App. 729 , 722 S.E.2d 333 , cert. denied, No. S12C0968, 2012 Ga. LEXIS 612 (Ga. 2012).

Section inapplicable when indictment within initial limitations period. - State did not need to take advantage of the statute of limitations extension provided by O.C.G.A. § 17-3-3 because the second indictment was filed within the initial limitations period. Phillips v. State, 298 Ga. App. 520 , 680 S.E.2d 424 (2009).

Ineffective counsel not established by consenting to nolle prosequi. - Defendant's trial counsel did not render ineffective assistance by consenting to the state's nolle prosequi, rather than insisting that the trial court rule on the defendant's special demurrer, because the state could have tried the defendant on the second indictment even if the trial court had quashed the first indictment; by the statute's plain terms, the savings provision of O.C.G.A. § 17-3-3 applies when a timely indictment is quashed, as well as when a nolle prosequi is entered. Hicks v. State, 315 Ga. App. 779 , 728 S.E.2d 294 (2012).

Cited in State v. Shepherd Constr. Co., 248 Ga. 1 , 281 S.E.2d 151 (1981); Bouldin v. State, 179 Ga. App. 394 , 346 S.E.2d 871 (1986); Danuel v. State, 262 Ga. 349 , 418 S.E.2d 45 (1992); Redding v. State, 205 Ga. App. 613 , 423 S.E.2d 10 (1992); Gordon v. Caldwell, 303 Ga. 715 , 814 S.E.2d 680 (2018).

Decisions Under Former Code 1933, § 27-601 After Enactment of Ga. L. 1968, p. 1249

To justify conviction, state must prove commission of offense which is not barred by statute of limitations. McNabb v. State, 120 Ga. App. 577 , 171 S.E.2d 655 (1969).

Usual statutory period extends from act to indictment. - In criminal cases, the statute of limitations runs, subject to special circumstances, from the time of the criminal act to the time of indictment, not from the time of the act to the time of the trial. Hall v. Hopper, 234 Ga. 625 , 216 S.E.2d 839 (1975).

Except where nolle prosequi extends case six months. - When a nolle prosequi is entered, the case is still pending for a period of six months and then terminates. Courtenay v. Randolph, 125 Ga. App. 581 , 188 S.E.2d 396 (1972).

Application to accusations. - Six-months limitation after the indictment was first quashed applies also to accusations. Jackson v. State, 140 Ga. App. 288 , 231 S.E.2d 805 (1976).

To permit state to correct informal errors. - Plain language and purport of this section is to allow the state within a six-month period the right to correct an informal mistake in a criminal warrant or indictment or suffer a final foreclosure of the right to prosecute the alleged criminal misconduct if the criminal process is not properly reinstituted. Bailey v. General Apt. Co., 139 Ga. App. 713 , 229 S.E.2d 493 (1976).

Statute usually starts to run when crime known. - Key to determining when the statute of limitations begins to run is to find when the offender or offense became known. State v. Brannon, 154 Ga. App. 285 , 267 S.E.2d 888 (1980).

Nolle prosequi prima facie termination of prosecution and starts statute. - Filing of a nolle prosequi by the prosecutor and dismissal of the action by the trial court constitutes prima facie a termination of the prosecution in favor of the person arrested and is sufficient to commence the running of the statute of limitations subject to the right of the state to reinstate the action within the six-month period. Bailey v. General Apt. Co., 139 Ga. App. 713 , 229 S.E.2d 493 (1976).

Nolle prosequi final if no reindictment. - If no further action is taken by the state to reinstate the indictment and toll the statute of limitations, the original nolle prosequi progresses from a prima facie termination of the action to an irrebuttable conclusion of finality. Bailey v. General Apt. Co., 139 Ga. App. 713 , 229 S.E.2d 493 (1976).

Reindictment in half year continues prosecution. - If a nolle prosequi is entered by the solicitor (now district attorney) with the consent of the court, a new indictment may be found within six months from the time the first indictment is quashed or the nolle prosequi entered and its effect is not necessarily the ending of the prosecution, but the continuance of the prosecution. Not until the expiration of the six-months period within which a new indictment for the same offense may be preferred, or some other act or declaration which amounts to an abandonment, is the prosecution at an end. Earlywine v. Strickland, 145 Ga. App. 626 , 244 S.E.2d 118 (1978).

Continuation of original prosecution. - If one arrested on a criminal warrant is discharged at the instance of the prosecution and without prejudice, the prosecution with due diligence and under the appropriate circumstances, may follow up with a new and valid prosecution, carrying the prosecution on in a court having jurisdiction to try the case upon the case's merits. This amounts to a continuation of the original prosecution. Bailey v. General Apt. Co., 139 Ga. App. 713 , 229 S.E.2d 493 (1976).

Malicious prosecution suit brought within half year. - Net effect of the extension provision of the statute of limitation is to render dubious the practicality of bringing a malicious prosecution action within six months of the nolle prosequi of the basic criminal complaint at the instance of the state since during that six-month period the action is not yet final. Bailey v. General Apt. Co., 139 Ga. App. 713 , 229 S.E.2d 493 (1976).

Decisions Under Former Code 1933, § 27-601 Before Enactment of Ga. L. 1968, p. 1249

Five year delay between offense and new indictment. - Mere fact that some five years intervened between the dates of offenses first charged and the date when the offenses were included in a new accusation by virtue of law does not render the accusation subject to demurrer (now motion to dismiss) or motion to quash on the ground that such evidences a purpose of the prosecutor to place the defendant's character in issue or that such violates the due process clause of the United States Constitution or the State Constitution guarantees of a public and fair trial. Hodges v. State, 98 Ga. App. 97 , 104 S.E.2d 704 (1958), rev'd on other grounds, 214 Ga. 614 , 106 S.E.2d 795 (1959).

Nolle prosequied after five years does not bar accusation filed during year of crime. - When each count of an accusation alleges that the charge embodied therein had originally been filed in the form of an accusation in the county criminal court in the same year in which the cause of action arose, and that such original accusation had subsequently been nol prossed more than five years later, the allegations are sufficient to place the counts of the accusation within the purview of the law and neither of the counts nor the accusation as a whole is barred by the statute of limitations. Hodges v. State, 98 Ga. App. 97 , 104 S.E.2d 704 (1958), rev'd on other grounds, 214 Ga. 614 , 106 S.E.2d 14 (1959).

Origins of section. - Georgia Laws 1855-56, p. 233 dealt with statutes of limitations in both civil and criminal cases, but the words "suit" and "plaintiff" were used therein in reference to civil actions only, and the word "indictments" seems to have been used wherever criminal offenses are dealt with; there is accordingly no intrinsic evidence that the final sentence of this section which first appeared in the Code of 1861, has its origin with the Act of 1855-56, but neither is there any positive indication that the original codifiers did not have it in mind when the original codifiers wrote the provision in the criminal limitations statute. Alewine v. State, 103 Ga. App. 120 , 118 S.E.2d 499 (1961).

Section applies to accusations as well as indictments. Hodges v. State, 214 Ga. 614 , 106 S.E.2d 795 (1959).

Section is a statute of limitations. Alewine v. State, 103 Ga. App. 120 , 118 S.E.2d 499 (1961).

Extension of statute of limitations. - This section extends the limitations fixed by other provisions of the law so that if the first indictment is returned within the time limited and thereafter quashed or a nolle prosequi entered for some informality and a second indictment is taken out within six months after such dismissal, the second indictment will be good although the offense charged would otherwise have been barred by the statute of limitations. Alewine v. State, 103 Ga. App. 120 , 118 S.E.2d 499 (1961).

If statute of limitations ran out at time of new indictment. - If a defendant is indicted and the indictment subsequently quashed or a nolle prosequi entered because of some informality therein, the state, if the state desires again to charge the defendant with the same offense, must do so within a period of six months after the dismissal of the first indictment, and this is so regardless of whether or not the bar of the statute of limitations as applied to criminal offenses generally has run at the time of the new indictment. Alewine v. State, 103 Ga. App. 120 , 118 S.E.2d 499 (1961).

Second indictment showing first one nol prossed only for informality. - In order to prevent an indictment or accusation which was returned more than two years after the commission of a known misdemeanor offense from being barred by the statute of limitations when it is returned within six months after the nolle prosequi of a former indictment, the second indictment or accusation must show that the former was not nol prossed because of a fatal defect, or because it was void, but only because of an "informality" or some other good reason which did not render it void. Hodges v. State, 214 Ga. 614 , 106 S.E.2d 795 (1959).

Statute tolled if accused flees. - After an indictment or accusation has been quashed or a nolle prosequi entered for informality (assuming that the original indictment does charge an offense and is not void on its face) then the prosecution must be renewed within a six-month period unless some other reason to toll the period of limitation is in existence, such as the fact that the offender absconds from the state or so conceals so that the offender cannot be arrested. Alewine v. State, 103 Ga. App. 120 , 118 S.E.2d 499 (1961).

Difficulty in reconvening grand jury not grounds for interpreting section. - Mere fact that the grand jury in session at the time nolle prosequi was entered was disqualified from returning another indictment for technical reasons as a result of which the murder indictment was quashed and that it would have been necessary for the trial court to call a special session of the grand jury in order to obtain a new indictment within the six-month period, was no reason for giving the statute a different meaning than that attributable to it by its plain language and former interpretation. Alewine v. State, 103 Ga. App. 120 , 118 S.E.2d 499 (1961).

Accusation showing statute elapsed and no exceptions. - Since time is limited for proffering an accusation, it is essential to the validity of the accusation that the time alleged should appear to be within the maximum allotted and if the offense appears on the face of the accusation to be barred by the statute of limitations, and no exception is alleged to toll the statute, although no demurrer (now motion to dismiss) was filed and the motion in arrest of judgment was filed after the trial during the trial term, the failure to allege such exception is fatal and the motion in arrest should be sustained. Love v. State, 70 Ga. App. 40 , 27 S.E.2d 337 (1943).

Court's authority. - Court has no authority, 15 months after nolle prosequi order is entered, to vacate the order of nolle prosequi and to reinstate the indictment as such court action is clearly in contravention of the provision of this section. Jacobs v. State, 95 Ga. App. 155 , 97 S.E.2d 528 (1957).

Decisions Under Former Penal Code 1910, § 30

Prosecutor can remedy minor defect within time limits. - When the prosecutor has been defeated by some matter not affecting the merits, some defect or informality which the prosecutor can remedy or avoid by new process, the statute will not prevent the prosecutor from so doing, provided the prosecutor follows it within the time allowed by law. Heaton v. State, 40 Ga. App. 87 , 149 S.E. 62 (1929).

Merely voidable indictment tolls statute if timely. - When the original indictment alleged that the indictment was found within the time limit after the offense became known, and the indictment was quashed for a mere informality, and therefore was not void, but merely voidable, the indictment did toll the statute. Heaton v. State, 40 Ga. App. 87 , 149 S.E. 62 (1929).

General Consideration

Section codifies common-law rule. - This section is a codification of the common-law rule of arrest with perhaps a slight enlargement of the power of arrest. Though at common law an officer might arrest for a breach of peace committed in the officer's presence without a warrant, the arrest must have been made within a reasonable time after the commission of the offense, that is, the officer must immediately set about the arrest, and follow up the effort until the arrest is made. There must be a continued pursuit and no cessation of acts tending toward the arrest from the time of the commission of the offense until the apprehension of the offender. Johnson v. Mayor of Americus, 46 Ga. 80 (1872); Yates v. State, 127 Ga. 813 , 56 S.E. 1017 , 9 Ann. Cas. 620 (1907).

Applicability. - O.C.G.A. § 17-4-20 applies to arrests for misdemeanors as well as for felonies. King v. State, 161 Ga. App. 382 , 288 S.E.2d 644 (1982).

Defendant's argument that the defendant's motion to dismiss the citation the police officer issued to defendant for hit and run should have been dismissed because the officer did not see the defendant commit the offense had to be rejected as the statute the defendant cited for that proposition, O.C.G.A. § 17-4-20(a) , only applied when a custodial arrest was involved and no custodial arrest was involved in the defendant's case. Davis v. State, 261 Ga. App. 539 , 583 S.E.2d 214 (2003).

Official immunity found. - Summary judgment in favor of police personnel was proper in an action against a police chief and officers for false imprisonment under O.C.G.A. § 51-7-20 because the record did not show any support for the plaintiff's contentions that the actions of the police officers in arresting the plaintiff, following an altercation and in the absence of exigent circumstances, demonstrated the requisite malice to overcome official immunity under state law. Plaintiff's unsupported allegations of conspiracy to frame the plaintiff for an altercation are insufficient to pierce the protections of official immunity on these claims. Goree v. City of Atlanta, 276 Fed. Appx. 919 (11th Cir. 2008)(Unpublished).

In an arrest for driving under the influence, the arrestee's false imprisonment claim failed because the officer was entitled to official immunity since the officer was performing a discretionary act when the officer arrested the arrestee; the arrestee's general allegations of malice did not overcome official immunity. Bannister v. Conway, F. Supp. 2d (N.D. Ga. Oct. 23, 2013).

Probable cause necessary. - Warrantless arrest may be made under O.C.G.A. § 17-4-20 only when the probable cause necessary for a constitutional arrest under the federal constitution is present. Glean v. State, 268 Ga. 260 , 486 S.E.2d 172 (1997), cert. denied, 522 U.S. 1079, 118 S. Ct. 860 , 139 L. Ed. 2 d 758 (1998).

Construed with § 17-4-23 . - O.C.G.A. § 17-4-23 gives a police officer the option to issue a citation, but does not restrict the power given to police in O.C.G.A. § 17-4-20 to make custodial arrests for crimes committed in the officers' presence. Brock v. State, 196 Ga. App. 605 , 396 S.E.2d 785 (1990); Polk v. State, 200 Ga. App. 17 , 406 S.E.2d 548 (1991); Edwards v. State, 224 Ga. App. 332 , 480 S.E.2d 246 (1997).

Construed with § 40-13-2.1 . - Having elected to issue a citation, a deputy cannot make a custodial arrest of a driver when the driver refuses to sign the citation. Instead, a deputy shall follow the procedures set forth in O.C.G.A. § 40-13-2.1 (a). The language of that statute makes clear that once a deputy or officer issues a citation, the deputy or officer is obligated to follow the procedures set forth in the statute. State v. Torres, 290 Ga. App. 804 , 660 S.E.2d 763 (2008).

Conflict with other statutes and administrative rules. - Neither the self-defense statute nor the arrest statute automatically prohibits the discharge of a firearm if the lives of innocent people may be in danger, and when a mandatory prohibition against such an action in a police department work rule conflicted with these statutes it was invalid and could not form the basis for a police officer's suspension. Allen v. City of Atlanta, 235 Ga. App. 516 , 510 S.E.2d 64 (1998).

Crimes against individual or society require warrant. - It is equally as necessary to get a warrant when an offense is committed against an individual as it is when the offense is against society as a whole. Gordy v. State, 93 Ga. App. 743 , 92 S.E.2d 737 (1956).

Arrest occurs with any restraint of liberty. - When a person is in custody and is not free to leave the office of the law enforcement officer, the person is under arrest. Robinson v. State, 166 Ga. App. 741 , 305 S.E.2d 381 (1983).

False imprisonment arrest. - In a false imprisonment case, the existence of probable cause standing alone is not a complete defense because, even if probable cause to believe a crime has been committed exists, a warrantless arrest would still be illegal unless the arrest was accomplished pursuant to one of the "exigent circumstances" applicable to law enforcement officers enumerated in O.C.G.A. § 17-4-20 or applicable to private persons as set forth in O.C.G.A. § 17-4-60 . Arbee v. Collins, 219 Ga. App. 63 , 463 S.E.2d 922 (1995).

Summary judgment was improperly granted in favor of the employer based on the employer procuring the employee's false imprisonment when the employee was arrested by a detective because, although two of the loss prevention officers both averred that neither of the officers encouraged or directed the police to arrest the employee, the officers told a third loss prevention officer that the officers were going to obtain the employee's arrest based on a videotape; there was a conflict in the evidence as to whether the employer directly or indirectly caused the police to arrest the employee; and a question of fact remained regarding whether the detective had probable cause to believe that the employee was involved in the theft or lied when denying being so involved. Smith v. Wal-Mart Stores East, LP, 330 Ga. App. 340 , 765 S.E.2d 518 (2014).

Summary judgment was improperly granted to the employer because a question of fact remained as to whether the employer procured the employee's false imprisonment as there was a conflict in the evidence about whether the employer caused the detective to arrest the employee as the evidence did not show as a matter of law that the police made a sufficiently independent investigation of the theft; and because a question of fact remained as to whether the detective had probable cause to arrest the employee in connection with the theft as there was a dispute about whether the employee actually saw a person take the electronics out of a case and failed to report it, giving rise to a reasonable suspicion that the employee was working with the thieves. Smith v. Wal-Mart Stores East, LP, 330 Ga. App. 340 , 765 S.E.2d 518 (2014).

Neutral magistrate determination required before warrant for seizure of pornography. - Constitution at a minimum requires the imposition of a neutral, detached magistrate in the procedure to make an independent judicial determination of probable cause prior to issuing an arrest warrant or some other warrant authorizing the seizure of allegedly obscene material to be used as evidence. Penthouse Int'l, Ltd. v. McAuliffe, 610 F.2d 1353 (5th Cir.), cert. dismissed, 447 U.S. 931, 100 S. Ct. 3031 , 65 L. Ed. 2 d 1131 (1980).

Unreasonable attempt to arrest with unlicensed semi-automatic weapon. - There was no evidence that the defendant, who murdered the victim with a rifle, was attempting to effect a valid citizen's arrest and, hence, the defendant was not entitled to an involuntary manslaughter charge. It was not reasonable for the defendant to attempt an arrest with a semi-automatic weapon which the defendant was not licensed to carry as deadly force in effecting an arrest is limited to self-defense or to a situation in which it is necessary to prevent a forcible felony. Hayes v. State, 261 Ga. 439 , 405 S.E.2d 660 (1991).

Off-duty officer employed as security guard. - There was evidence that the off-duty officer's duties as a security guard included arresting disorderly persons to remove the persons from the premises, so it cannot be said as a matter of law that the arrest was lawful under O.C.G.A. § 17-4-20(a) . Rather, whether the arrest was lawful as one made by a police officer is a jury question. Smith v. Holeman, 212 Ga. App. 158 , 441 S.E.2d 487 (1994).

"Deadly force" instruction given when police prosecuted. - In a prosecution against police officers for manslaughter, arising out of the shooting of the victim in a parking lot following a report that the victim had threatened someone with a knife, the justification charge given was wholly inadequate, as it applied to ordinary citizens, not to law enforcement officers acting in the line of duty, who are allowed to use deadly force on the reasonable belief that the suspect possesses a deadly weapon. Because this omission was harmful as a matter of law, the case was reversed, notwithstanding the fact that the charge was verbally requested after the jury began deliberating. Robinson v. State, 221 Ga. App. 865 , 473 S.E.2d 519 (1996).

Use of deadly force not justified if fleeing suspect wanted only for traffic offense. - Deputy sheriff who rammed a fleeing suspect's car causing injury to the suspect was not entitled to qualified immunity from suit alleging a violation of the Fourth Amendment right to be free from unlawful seizure because a reasonable officer would have known that a vehicle could be used to apply deadly force to effect a seizure, and that deadly force could not constitutionally be used to apprehend a fleeing suspect wanted only for speeding. Harris v. Coweta County, 406 F.3d 1307 (11th Cir. 2005).

Arrest of passenger on warrant authorized stop of vehicle. - Trial court properly denied a defendant's motion to suppress the evidence of drugs and a handgun found during the warrantless search of the defendant's vehicle as the arrest of the defendant's passenger on an outstanding warrant authorized the stop of the defendant's vehicle and the mobility of the car, coupled with the existence of probable cause to believe the car contained marijuana, based on the officer smelling the marijuana upon approaching the vehicle, authorized the search. Somesso v. State, 288 Ga. App. 291 , 653 S.E.2d 855 (2007), cert. denied, 2008 Ga. LEXIS 281 (Ga. 2008).

Officer may arrest a suspect without an arrest warrant if an offense has been committed in the officer's presence and while an officer generally must have a search warrant or consent to enter a home to make an arrest, an officer can enter a home to arrest a suspect when the officer has followed the suspect there in "hot pursuit." A suspect may not defeat an arrest which has been set in motion in a public place ... by the expedient of escaping to a private place. For Fourth Amendment purposes, one who is in the threshold of one's dwelling is in a public place and not within the dwelling. Lawson v. State, 299 Ga. App. 865 , 684 S.E.2d 1 (2009), cert. dismissed, No. S10C0118, 2010 Ga. LEXIS 206 (Ga. 2010); cert. denied, No. S10C0117, 2010 Ga. LEXIS 195 (Ga. 2010).

No grounds for challenge to arrest warrant. - Defendant failed to show trial counsel's performance was deficient for failing to challenge the arrest warrant on the basis that the warrant was not properly sworn because the record showed that the defendant was taken into custody and arrested before the warrant was issued and there was a valid, warrantless arrest of the defendant, making the later-issued warrant superfluous; thus, any defect in the arrest warrant was moot, and a challenge to the arrest warrant would have been futile. Williams v. State, 326 Ga. App. 784 , 757 S.E.2d 448 (2014).

Cited in Glaze v. State, 156 Ga. 807 , 120 S.E. 530 (1923); Seals v. State, 33 Ga. App. 818 , 128 S.E. 224 (1925); Whitfield v. State, 51 Ga. App. 439 , 180 S.E. 630 (1935); Griffin v. State, 183 Ga. 775 , 190 S.E. 2 (1937); Booker v. State, 183 Ga. 822 , 190 S.E. 356 (1937); Sheppard v. Hale, 58 Ga. App. 140 , 197 S.E. 922 (1938); Murphy v. City of Atlanta, 64 Ga. App. 752 , 14 S.E.2d 232 (1941); Newmans v. State, 65 Ga. App. 288 , 16 S.E.2d 87 (1941); Bentley v. State, 70 Ga. App. 494 , 28 S.E.2d 658 (1944); Cawthon v. State, 71 Ga. App. 497 , 31 S.E.2d 64 (1944); Smith v. Glen Falls Indem. Co., 71 Ga. App. 697 , 32 S.E.2d 105 (1944); Benford v. State, 73 Ga. App. 426 , 36 S.E.2d 833 (1946); Moore v. State, 205 Ga. 37 , 52 S.E.2d 282 (1949); Goodwin v. Allen, 89 Ga. App. 187 , 78 S.E.2d 804 (1953); Hill v. Henry, 90 Ga. App. 93 , 82 S.E.2d 35 (1954); Sharpe v. Lowe, 214 Ga. 513 , 106 S.E.2d 28 (1958); Crosby v. State, 100 Ga. App. 49 , 110 S.E.2d 94 (1959); Savannah News-Press, Inc. v. Harley, 100 Ga. App. 387 , 111 S.E.2d 259 (1959); Mullins v. State, 216 Ga. 183 , 115 S.E.2d 547 (1960); Collins v. United States, 289 F.2d 129 (5th Cir. 1961); Pistor v. State, 219 Ga. 161 , 132 S.E.2d 183 (1963); Pugh v. State, 219 Ga. 166 , 132 S.E.2d 203 (1963); Hart v. United States, 316 F.2d 916 (5th Cir. 1963); Paige v. State, 219 Ga. 569 , 134 S.E.2d 793 (1964); Raif v. State, 219 Ga. 649 , 135 S.E.2d 375 (1964); Barron v. State, 109 Ga. App. 786 , 137 S.E.2d 690 (1964); Walker v. State, 220 Ga. 415 , 139 S.E.2d 278 (1964); Graham v. State, 111 Ga. App. 542 , 142 S.E.2d 287 (1965); Harris v. State, 221 Ga. 398 , 144 S.E.2d 769 (1965); Bloodworth v. State, 113 Ga. App. 278 , 147 S.E.2d 833 (1966); McEwen v. State, 113 Ga. App. 765 , 149 S.E.2d 716 (1966); Manuel v. United States, 355 F.2d 344 (5th Cir. 1966); Lovelace v. United States, 357 F.2d 306 (5th Cir. 1966); Henderson v. United States, 405 F.2d 874 (5th Cir. 1968); Crone v. United States, 411 F.2d 251 (5th Cir. 1969); Davidson v. State, 125 Ga. App. 502 , 188 S.E.2d 124 (1972); Vaughn v. State, 126 Ga. App. 252 , 190 S.E.2d 609 (1972); Bradford v. State, 126 Ga. App. 688 , 191 S.E.2d 545 (1972); Patterson v. State, 126 Ga. App. 753 , 191 S.E.2d 584 (1972); Barnwell v. State, 127 Ga. App. 335 , 193 S.E.2d 203 (1972); Traylor v. State, 127 Ga. App. 409 , 193 S.E.2d 876 (1972); Blair v. State, 230 Ga. 409 , 197 S.E.2d 362 (1973); Brooks v. State, 129 Ga. App. 109 , 198 S.E.2d 892 (1973); Brooks v. State, 129 Ga. App. 393 , 199 S.E.2d 578 (1973); Brice v. State, 129 Ga. App. 535 , 199 S.E.2d 895 (1973); Ivins v. State, 129 Ga. App. 865 , 201 S.E.2d 683 (1973); Caito v. State, 130 Ga. App. 831 , 204 S.E.2d 765 (1974); Jones v. State, 131 Ga. App. 699 , 206 S.E.2d 601 (1974); Luke v. State, 131 Ga. App. 799 , 207 S.E.2d 213 (1974); Meneghan v. State, 132 Ga. App. 380 , 208 S.E.2d 150 (1974); Godwin v. State, 133 Ga. App. 397 , 211 S.E.2d 7 (1974); McCorquodale v. State, 233 Ga. 369 , 211 S.E.2d 577 (1974); Patterson v. State, 133 Ga. App. 742 , 212 S.E.2d 858 (1975); Lawson v. State, 234 Ga. 136 , 214 S.E.2d 559 (1975); Wright v. State, 134 Ga. App. 406 , 214 S.E.2d 688 (1975); Sanders v. State, 235 Ga. 425 , 219 S.E.2d 768 (1975); Little v. State, 136 Ga. App. 189 , 220 S.E.2d 490 (1975); Lentile v. State, 136 Ga. App. 611 , 222 S.E.2d 86 (1975); Mitchell v. State, 136 Ga. App. 658 , 222 S.E.2d 160 (1975); Allen v. State, 137 Ga. App. 21 , 222 S.E.2d 856 (1975); Pate v. State, 137 Ga. App. 677 , 225 S.E.2d 95 (1976); Reeves v. State, 139 Ga. App. 214 , 228 S.E.2d 201 (1976); Keating v. State, 141 Ga. App. 377 , 233 S.E.2d 456 (1977); Quarles v. State, 142 Ga. App. 394 , 236 S.E.2d 139 (1977); Floyd v. State, 142 Ga. App. 425 , 236 S.E.2d 157 (1977); Carroll v. State, 142 Ga. App. 428 , 236 S.E.2d 159 (1977); State v. Handspike, 240 Ga. 176 , 240 S.E.2d 1 (1977); Johnson v. State, 143 Ga. App. 826 , 240 S.E.2d 207 (1977); Smith v. State, 144 Ga. App. 785 , 242 S.E.2d 376 (1978); Walker v. State, 144 Ga. App. 838 , 242 S.E.2d 753 (1978); Reese v. State, 145 Ga. App. 453 , 243 S.E.2d 650 (1978); Cook v. State, 145 Ga. App. 544 , 244 S.E.2d 64 (1978); Dougherty v. State, 145 Ga. App. 718 , 244 S.E.2d 638 (1978); State v. High, 145 Ga. App. 772 , 244 S.E.2d 888 (1978); Morgan v. State, 241 Ga. 485 , 246 S.E.2d 198 (1978); State v. Stone, 147 Ga. App. 192 , 248 S.E.2d 228 (1978); Kiriaze v. State, 147 Ga. App. 832 , 250 S.E.2d 568 (1978); Booker v. State, 242 Ga. 773 , 251 S.E.2d 518 (1979); Parks v. State, 150 Ga. App. 446 , 258 S.E.2d 66 (1979); Washington v. State, 245 Ga. 117 , 263 S.E.2d 152 (1980); State v. Sanders, 154 Ga. App. 305 , 267 S.E.2d 906 (1980); Baxter v. State, 154 Ga. App. 861 , 270 S.E.2d 71 (1980); Starr v. State, 159 Ga. App. 386 , 283 S.E.2d 630 (1981); Ellis v. State, 248 Ga. 414 , 283 S.E.2d 870 (1981); Butler v. State, 159 Ga. App. 895 , 285 S.E.2d 610 (1981); Nelson v. State, 160 Ga. App. 168 , 286 S.E.2d 504 (1981); Blackwell v. State, 248 Ga. 138 , 281 S.E.2d 599 (1981); Robertson v. State, 161 Ga. App. 715 , 288 S.E.2d 362 (1982); Mobley v. State, 164 Ga. App. 154 , 296 S.E.2d 617 (1982); Cornelius v. State, 165 Ga. App. 794 , 302 S.E.2d 710 (1983); Collins v. Sadlo, 167 Ga. App. 317 , 306 S.E.2d 390 (1983); Mines v. State, 167 Ga. App. 766 , 307 S.E.2d 291 (1983); Bodiford v. State, 169 Ga. App. 760 , 315 S.E.2d 274 (1984); Edwards v. State, 169 Ga. App. 958 , 315 S.E.2d 675 (1984); Bowen v. State, 170 Ga. App. 49 , 316 S.E.2d 33 (1984); Crews v. State, 170 Ga. App. 104 , 316 S.E.2d 549 (1984); Powell v. State, 170 Ga. App. 185 , 316 S.E.2d 779 (1984); Waits v. State, 172 Ga. App. 524 , 323 S.E.2d 624 (1984); Parker v. State, 172 Ga. App. 540 , 323 S.E.2d 826 (1984); Scott Hous. Sys. v. Hickox, 174 Ga. App. 23 , 329 S.E.2d 154 (1985); Stansell v. State, 174 Ga. App. 511 , 330 S.E.2d 441 (1985); Moore v. State, 174 Ga. App. 826 , 331 S.E.2d 115 (1985); Ridley v. State, 176 Ga. App. 669 , 337 S.E.2d 382 (1985); Rogers v. State, 256 Ga. 139 , 344 S.E.2d 644 (1986); Minor v. State, 180 Ga. App. 869 , 350 S.E.2d 783 (1986); Young v. City of Atlanta, 631 F. Supp. 1498 (N.D. Ga. 1986); Parrish v. State, 182 Ga. App. 247, 355 S.E.2d 682 (1987); Robinson v. State, 182 Ga. App. 423 , 356 S.E.2d 55 (1987); Harley v. State, 183 Ga. App. 253 , 358 S.E.2d 653 (1987); Ferguson v. City of Doraville, 186 Ga. App. 430 , 367 S.E.2d 551 (1988); Roberson v. State, 186 Ga. App. 808 , 368 S.E.2d 568 (1988); Dorsey v. State, 187 Ga. App. 725 , 371 S.E.2d 207 (1988); Arnold v. State, 198 Ga. App. 514 , 402 S.E.2d 312 (1991); Mitchell v. State, 200 Ga. App. 146 , 407 S.E.2d 115 (1991); Lufburrow v. State, 206 Ga. App. 250 , 425 S.E.2d 368 (1992); Watkins v. State, 206 Ga. App. 575 , 426 S.E.2d 26 (1992); State v. Weathers, 234 Ga. App. 376 , 506 S.E.2d 698 (1998); Schroeder v. State, 261 Ga. App. 879 , 583 S.E.2d 922 (2003); Hight v. State, 293 Ga. App. 254 , 666 S.E.2d 678 (2008); Ferrell v. Mikula, 295 Ga. App. 326 , 672 S.E.2d 7 (2008).

Grounds for Warrantless Arrest

1. In General

Three exceptions to having warrant for any public officer. - Only three exceptions to the general rule that the law requires a warrant in order to render an arrest legal, whether the arrest be made by a police officer or any public officer, are recognized by this section. Thomas v. State, 91 Ga. 204 , 18 S.E. 305 (1892); Graham v. State, 143 Ga. 440 , 85 S.E. 328 , 1917A Ann. Cas. 595 (1915).

Arrest illegal if not under three exceptions. - Unless an arrest without a warrant falls within the three exceptions specified in this section, it is an illegal arrest. Conoly v. Imperial Tobacco Co., 63 Ga. App. 880 , 12 S.E.2d 398 (1940).

When warrantless arrest permitted. - An arrest for a crime may be made by an officer without a warrant in three instances only: (1) if the offense is committed in the official's presence; or (2) the offender is endeavoring to escape; or (3) for other cause there is likely to be a failure of justice for want of an officer to issue a warrant. Napier v. State, 200 Ga. 626 , 38 S.E.2d 269 (1946); Finch v. State, 101 Ga. App. 73 , 112 S.E.2d 824 (1960); Puckett v. State, 239 Ga. App. 582 , 521 S.E.2d 634 (1999).

Warrantless arrest is not violative of O.C.G.A. § 17-4-20 if the officer had probable cause to make an arrest, i.e., if the officer knew facts and circumstances, based on reasonably trustworthy information, sufficient to warrant a prudent man to believe that the defendant committed an offense. Ellis v. State, 164 Ga. App. 366 , 296 S.E.2d 726 (1982), appeal dismissed, 462 U.S. 1113, 103 S. Ct. 3079 , 77 L. Ed. 2 d 1344, cert. denied, 462 U.S. 1119, 103 S. Ct. 3087 , 77 L. Ed. 2 d 1348 (1983); State v. Thurmond, 203 Ga. App. 230 , 416 S.E.2d 529 , cert. denied, 203 Ga. App. 907 , 416 S.E.2d 529 (1992).

If a police officer has probable cause to believe that the defendant made terroristic threats, the officer's arrest and pat-down search of the defendant were lawful. Medlin v. State, 168 Ga. App. 551 , 309 S.E.2d 639 (1983).

Warrantless arrest of the defendant for a domestic violence act of assault, given the information provided by the defendant's girlfriend, the girlfriend's obvious injuries, and the defendant's attempt to flee, was supported by sufficient probable cause and thus upheld on appeal. Rivers v. State, 287 Ga. App. 632 , 653 S.E.2d 78 (2007).

Arresting officer's knowledge. - It is the facts and circumstances existing within the knowledge of the arresting officer at the moment arrest is made which are controlling. Barnett v. State, 204 Ga. App. 491 , 420 S.E.2d 43 (1992).

Felony charges from foreign state. - General Assembly by the enactment of Ga. L. 1951, p. 726, § 14 (see O.C.G.A. 17-13-34 ), provided that an arrest without a warrant might be lawfully made by any peace officer upon reasonable information that the accused stands charged in the courts of a state with a crime punishable by death or imprisonment for a term exceeding one year. Fields v. State, 211 Ga. 335 , 85 S.E.2d 753 (1955); Peterkin v. State, 147 Ga. App. 437 , 249 S.E.2d 152 (1978).

Arrest meeting the constitutional requirements of probable cause is valid whether or not O.C.G.A. § 17-4-20 is violated. Quick v. State, 166 Ga. App. 492 , 304 S.E.2d 916 (1983).

Subsequent guilt or innocence does not determine legality of arrest. - Fact that the defendant is found not guilty of a charge is immaterial as to the legality of the arrest because it is not necessary that the accused be found guilty for the arrest may still be lawful. Brooks v. State, 166 Ga. App. 704 , 305 S.E.2d 436 (1983).

Warrantless search legal under federal law is legal under state law. - Warrantless arrest legal under federal law - that is, one made on the basis of probable cause - is legal under state law, and the requirements of O.C.G.A. § 17-4-20 and federal law are the same. State v. Thurmond, 203 Ga. App. 230 , 416 S.E.2d 529 , cert. denied, 203 Ga. App. 907 , 416 S.E.2d 529 (1992).

Person under investigation subject to arrest without warrant on probable cause. - When the offender knows that the offender is under investigation, a police officer, once the officer finds probable cause for arrest, is justified in proceeding directly to arrest the offender without first obtaining a warrant. Fitzgerald v. State, 166 Ga. App. 307 , 304 S.E.2d 114 (1983).

Arrest inside suspect's home. - Warrantless arrest may be made inside a suspect's home only with the suspect's consent or under exigent circumstances. Mincey v. State, 251 Ga. 255 , 304 S.E.2d 882 (1983), cert. denied, 464 U.S. 977, 104 S. Ct. 414 , 78 L. Ed. 2 d 352 (1983).

When a suspect is telephonically requested to exit the suspect's home and voluntarily does so, the suspect's arrest, outside the suspect's home, by officers who have probable cause to believe that the suspect has participated in a felony is constitutionally valid. Mincey v. State, 251 Ga. 255 , 304 S.E.2d 882 (1983), cert. denied, 464 U.S. 977, 104 S. Ct. 414 , 78 L. Ed. 2 d 352 (1983).

Probable cause for an arrest without a warrant exists when the facts and circumstances within the arresting officer's knowledge are sufficient to warrant a belief by a person of reasonable caution that a crime has been committed. Cornelius v. State, 165 Ga. App. 794 , 302 S.E.2d 710 (1983).

When at the time the defendant was arrested one officer had been told by the victim what happened and that the officer radioed other officers to alert the officers to look for the defendant and the defendant's vehicle, based on that information, another officer properly placed the defendant under arrest. Gilbert v. State, 209 Ga. App. 483 , 433 S.E.2d 664 (1993).

Grounds must be more than arbitrary harassment. - What is a reasonable articulable ground for the detention may be less than probable cause to make an arrest or conduct a search, but must be more than mere caprice or arbitrary harassment. State v. Thurmond, 203 Ga. App. 230 , 416 S.E.2d 529 , cert. denied, 203 Ga. App. 907 , 416 S.E.2d 529 (1992).

Probable cause that an act of family violence had been committed. Clark v. State, 180 Ga. App. 280 , 348 S.E.2d 916 (1986).

Uncontradicted testimony of the police witness concerning the victim's statement accusing the victim's spouse of stabbing the victim, the presence of a stab wound on the victim's back, the presence of several weapons, and the disordered condition of the scene clearly established that the officers had probable cause to believe that an act of family violence had occurred. Watkins v. State, 183 Ga. App. 778 , 360 S.E.2d 47 (1987).

Wife's statement to officers that her husband had struck her provided probable cause to arrest the defendant, and since the offense which the officers had probable cause to believe had been committed was an act of family violence, a warrantless arrest was authorized. McCauley v. State, 222 Ga. App. 600 , 475 S.E.2d 669 (1996).

Victim's on-the-scene accusations against the defendant, along with "visible bodily harm" to the victim's face, provided sufficient probable cause to believe that the defendant had committed battery, and it was unnecessary for the officer to investigate the defendant's explanation of the domestic dispute as required by O.C.G.A. § 17-4-20.1 . McCracken v. State, 224 Ga. App. 356 , 480 S.E.2d 361 (1997).

There was no error in the trial court's conclusion that the defendant's warrantless arrest after being found at the home of a friend was justified under O.C.G.A. § 17-4-20(a) as another friend of the defendant had been found shot at the defendant's home, and by the time of the arrest the police knew that the defendant's spouse was missing, that the defendant and the defendant's spouse were estranged, and that the defendant had stalked and threatened the defendant's spouse, such that the police had probable cause to believe that an act of family violence had occurred, and the possibility that the spouse was still alive was an exigent circumstance which authorized the entry into the friend's home to arrest the defendant. Wright v. State, 276 Ga. 454 , 579 S.E.2d 214 (2003), cert. denied, 540 U.S. 1106, 124 S. Ct. 1059 , 157 L. Ed. 2 d 892 (2004).

Probable cause not found. - Powell v. State, 163 Ga. App. 801 , 295 S.E.2d 560 (1982); State v. Gunter, 249 Ga. App. 802 , 549 S.E.2d 771 (2001).

Trial court properly granted the defendant's motion to suppress evidence obtained after the defendant's car was impounded during a traffic stop because, even though the officer had reasonable articulable suspicion to initiate the traffic stop based on criminal database search results that the defendant's car was not insured, once the defendant provided proof of insurance in an acceptable manner, the officer did not have probable cause to arrest the defendant or issue the defendant a citation; and, without probable cause to issue the citation, the officer had no basis for impounding the defendant's vehicle. State v. Lewis, 344 Ga. App. 630 , 811 S.E.2d 436 (2018).

Probable cause found. - Defendant's arrival with a police suspect at a hidden drug transaction location and the defendant's attempt to leave the scene at the time of the suspect's arrest supported a finding that the police had probable cause on which to arrest the defendant. Fowler v. State, 201 Ga. App. 417 , 411 S.E.2d 335 (1991).

Since police officers knew that a fatal stabbing and robbery had occurred that morning, that the defendant had been at or near the scene of the murder, that the defendant had threatened the victim only a week before, and that the defendant had been treated that morning for a wound, the protective search for weapons made by the police officers was constitutionally permissible. Further, as the search was proper, the police were also authorized to arrest the defendant when the police found a pistol concealed on defendant's person. Edwards v. State, 264 Ga. 615 , 449 S.E.2d 516 (1994).

Probable cause from videotape identification and commercial transactions. - Probable cause for warrantless arrest of the defendant as the defendant left the defendant's home was properly established through the defendant's identification from videotapes by bank coworkers and by a police officer who had known the defendant for 25 years, and by the defendant's payments in cash to four financial institutions. Brown v. State, 262 Ga. 728 , 425 S.E.2d 856 , cert. denied, 510 U.S. 998, 114 S. Ct. 565 , 126 L. Ed. 2 d 465 (1993).

Officers justified in arresting defendant for DUI. - Officers were justified in arresting the defendant for driving under the influence and operating a vehicle after being declared a habitual violator since once the defendant had been stopped, the officers observed that the defendant appeared to be intoxicated, and the defendant admitted being a habitual violator. Cheatham v. State, 204 Ga. App. 483 , 419 S.E.2d 920 (1992).

Persons entitled to arrest probation violators. - Power to make a warrantless arrest of a known probation violator is not limited to the probation supervisor, under O.C.G.A. § 42-8-38 , but also includes a law enforcement officer with general arrest powers who has trustworthy information as to the probation violation. Battle v. State, 254 Ga. 666 , 333 S.E.2d 599 (1985).

Suspect found wearing incriminating type of shoe justified warrantless arrest. Clinkscale v. State, 158 Ga. App. 597 , 281 S.E.2d 341 (1981).

Defendant's appearance, a cut in defendant's jacket shoulder, defendant's proximity to the burglary site, the observation of a running person believed by the officer to be the same one stopped pursuant to the officer's description by the other officer a few minutes later, the short time between the report of the burglar alarm and the apprehension of the defendant, the absence of anyone else in the area matching the suspect's description, the defendant's nervousness, and the deputy's knowledge of the defendant's prior record of burglary and escape, added up to probable cause to arrest the defendant. State v. Wilson, 179 Ga. App. 334 , 346 S.E.2d 111 (1986).

Officer must reveal the officer's police status. - It is the duty of an officer to disclose the officer's official character to the person whom the officer is arresting. Douglas v. State, 152 Ga. 379 , 110 S.E. 168 (1921).

Officer must reveal charge. - Officer who arrests an alleged offender must also inform the accused of the nature of the charge. Dorsey v. State, 7 Ga. App. 366 , 66 S.E. 1096 (1910).

Illegal arrest is tort. - Arrest without a warrant, unless made under circumstances declared by statute to permit an arrest without a warrant, is illegal and is a tort for which an action will lie as well as when arrest is under process of law but without probable cause and maliciously made. Standard Sur. & Cas. Co. v. Johnson, 74 Ga. App. 823 , 41 S.E.2d 576 (1947).

Liability for false imprisonment. - To avoid liability for false imprisonment, it must be shown not only that the arrest was valid but also that the arresting officer had probable cause to believe the charged offense had been committed. Amason v. Kroger Co., 204 Ga. App. 695 , 420 S.E.2d 314 (1992).

Burden on arrester to show exception to warrant requirement. - Whoever arrests or imprisons a person without a warrant is guilty of a tort, unless the arrestor can justify under some of the exceptions in which arrest and imprisonment without a warrant are permitted by law; and the burden of proving the existence of the facts raising the exception is upon the person making the arrest or inflicting the imprisonment. Vlass v. McCrary, 60 Ga. App. 744 , 5 S.E.2d 63 (1939); Duchess Chenilles, Inc. v. Masters, 84 Ga. App. 822 , 67 S.E.2d 600 (1951).

Plaintiff held for payment without warrant justified false imprisonment action. - Under allegations that the plaintiff was arrested without a warrant when the plaintiff was not guilty of any offense under the state laws or under any city ordinance and, without being carried before a committing magistrate, was held under arrest and deprived of liberty until the plaintiff and the plaintiff's brother paid to the defendant a sum of money, whereupon the defendant accepted the money and caused or permitted the plaintiff to be released from custody, the arrest and detention of the plaintiff were clearly illegal, and a cause of action for false imprisonment was set out. Duchess Chenilles, Inc. v. Masters, 84 Ga. App. 822 , 67 S.E.2d 600 (1951).

Information suggesting why officer believed plaintiff inebriated admissible. - If, in a false imprisonment action there is evidence from which the jury would be authorized to find that the defendant in good faith and with probable cause arrested the prosecutor for drunkenness, any facts, circumstances, or information on which the defendant officer acted in making the arrest are admissible, not as proof of the facts, but as evidence that the officer in making the arrest did so upon a reasonable ground of suspicion. Henderson v. State, 95 Ga. App. 830 , 99 S.E.2d 270 (1957).

Evidence affirming details of an informant's tip. - That the defendant matched the description of a drug dealer and that the defendant had "a large bulge" in the area of the defendant's pants where the informant had seen defendant conceal contraband was sufficient to verify the tipster's veracity and support the trial court's finding that the police had probable cause on which to arrest the defendant. Manzione v. State, 194 Ga. App. 227 , 390 S.E.2d 121 (1990).

Conflicting testimony. - Court found no impermissible conduct that would taint the subsequent arrest when the police and the defendant offered conflicting testimony regarding events which led to the defendant's arrest. State v. Thurmond, 203 Ga. App. 230 , 416 S.E.2d 529 , cert. denied, 203 Ga. App. 907 , 416 S.E.2d 529 (1992).

Conviction of police officer for involuntary manslaughter was proper. O'Conner v. State, 64 Ga. 125 , 37 Am. R. 58 (1879).

2. Offense Committed in Officer's Presence

Words "in the presence" and "within his immediate knowledge" are synonymous; to justify the arrest without a warrant, the officer need not see the act which constitutes the crime taking place if by any of the officer's senses the officer has personal knowledge of the crime's commission. Marsh v. State, 182 Ga. App. 892 , 357 S.E.2d 325 (1987); State v. Carranza, 217 Ga. App. 431 , 457 S.E.2d 699 (1995), rev'd in part on other grounds, 266 Ga. 263 , 467 S.E.2d 315 (1996); Youhoing v. State, 226 Ga. App. 475 , 487 S.E.2d 86 (1997); Watson v. State, 243 Ga. App. 636 , 534 S.E.2d 93 (2000).

Constitutionality of warrantless arrest depends on officer having probable cause. - Constitutional validity of an arrest without a warrant depends upon whether the arresting officer has probable cause to believe the defendant is committing or has committed, an offense in the officer's presence. Brooks v. State, 166 Ga. App. 704 , 305 S.E.2d 436 (1982).

Constitutional validity of an arrest without a warrant depends upon whether, at the moment the arrest was made, the officers had probable cause to make the arrest - whether at the moment the facts and circumstances within their knowledge and of which they had reasonably trustworthy information were sufficient to warrant a prudent man in believing that the (suspect) had committed or was committing an offense. Davis v. State, 203 Ga. App. 227 , 416 S.E.2d 771 , cert. denied, 203 Ga. App. 905 , 416 S.E.2d 771 (1992).

If any crime is committed in the arresting officer's presence, a warrantless arrest is legal. Wilson v. State, 223 Ga. 531 , 156 S.E.2d 446 (1967), cert. denied, 390 U.S. 911, 88 S. Ct. 839 , 19 L. Ed. 2 d 885 (1968).

Offense committed in defendant's home. - When an individual commits an offense in his or her home and that offense is committed in the presence of a law enforcement officer, the officer is authorized to arrest the individual in the home without a warrant only when the officer's entry into the home is by consent or when there are exigent circumstances. Carranza v. State, 266 Ga. 263 , 467 S.E.2d 315 (1996).

Arrest is officer's duty. - When a crime is committed in the presence of an officer, it is not only the officer's right then and there to arrest without a warrant, but it is the officer's duty to do so. Yancy v. Fidelity & Cas. Co., 96 Ga. App. 476 , 100 S.E.2d 653 (1957), appeal dismissed, 213 Ga. 903 , 102 S.E.2d 497 (1958).

Discretion of officer to issue citation or make arrest. - Although O.C.G.A. § 17-4-23(a) gives a police officer the option of issuing a citation, it does not restrict the power given to police in O.C.G.A. § 17-4-20 to make custodial arrests for crimes committed in the officers' presence. Consequently, after a driver is arrested for a traffic violation, a police officer can lawfully search the interior of the driver's car. State v. Lowe, 263 Ga. App. 1 , 587 S.E.2d 169 (2003).

Because an officer was authorized to arrest the defendant for weaving, a decision to impound the vehicle the defendant was driving was not unreasonable, and an inventory search of the vehicle was authorized; thus, the trial court did not err in denying the defendant's motion to suppress the evidence seized as a result of the search. Lopez v. State, 286 Ga. App. 873 , 650 S.E.2d 430 (2007).

Officers who see persons acting suspiciously may investigate, including "stop and frisk." Clark v. State, 131 Ga. App. 583 , 206 S.E.2d 717 (1974).

If officer believes crime occurred or will occur. - Officers have ample authority to investigate if the officers believe a crime has occurred or is about to occur in the officers' presence. Clark v. State, 131 Ga. App. 583 , 206 S.E.2d 717 (1974).

Police officer had probable cause to make a warrantless arrest of a defendant for misdemeanor obstruction when the defendant, after being told not to move a car belonging to the defendant's girlfriend because the officer needed to check the car's registration to complete a shoplifting investigation of the girlfriend, the defendant disobeyed the officer and had a friend remove the car from a store lot. Stryker v. State, 297 Ga. App. 493 , 677 S.E.2d 680 (2009).

Officer observed fight but not the instigator. - In an arrestee's action under 42 U.S.C. § 1983 for arresting the arrestee without probable cause, given the circumstances known to the officers as the officers observed a physical scuffle between the arrestee and another officer in an extremely crowded venue just before midnight on New Year's Eve, the officers had probable cause to arrest for simple battery. Robinson v. MARTA, 334 Ga. App. 746 , 780 S.E.2d 400 (2015).

Random search of automobile's occupants unjustified. - While a police officer may arrest for a crime committed in the officer's presence, that is, of which the officer is aware through the use of the officer's senses, and while there are circumstances under which the officer may momentarily detain and question a citizen, if the officer is acting upon reasonable and articulable suspicion which may yet not amount to probable cause to believe a crime is being committed, this gives the officer no right, where a crime is not being committed in the officer's presence in such manner that it is known to the officer by the use of the officer's senses, to stop a vehicle and search the occupants, and calling the search a "frisk" in no way ameliorates the situation. A "frisk," if legal at all, is such only in exceptional circumstances and only for the very limited purpose of assuring the officer that the suspect whom the officer must accost is not going to turn upon the officer with a weapon. L.B.B. v. State, 129 Ga. App. 163 , 198 S.E.2d 895 (1973).

No right to arrest and search for weapons on mere suspicion. - Under this section, an officer has no authority, upon bare suspicion or upon mere information derived from others, to arrest a citizen and search the citizen's person in order to ascertain whether or not the citizen is carrying a concealed weapon in violation of law. Pickett v. State, 99 Ga. 12 , 25 S.E. 608 (1896).

Arrest on suspicion of unknown crime. - There is no authority under which a citizen may be arrested without a warrant and held for investigation to determine if the citizen has committed some crime merely because the person making the arrest has a suspicion that the person arrested may have committed some then unknown crime. Raif v. State, 109 Ga. App. 354 , 136 S.E.2d 169 (1964).

Because arrest requires offense. - To justify a police officer in making an arrest without a warrant, there must be an offense committed by the party arrested. O'Conner v. State, 64 Ga. 125 , 37 Am. R. 58 (1879); Holliday v. Coleman, 12 Ga. App. 779 , 78 S.E. 482 (1913).

Articulable suspicion based on senses. - In determining whether a suspicious situation should be further investigated or an arrest based on probable cause made, an officer may rely upon information acquired through any of the officer's senses. Perry v. State, 204 Ga. App. 643 , 419 S.E.2d 922 (1992).

Detective reasonably could conclude at that time that an exigent situation was at hand after the detective received complaints regarding loud noise from a certain vicinity; proceeding to that vicinity and after the officer observed through the officer's sense of hearing, while on a public road, screaming, hollering, and music. Perry v. State, 204 Ga. App. 643 , 419 S.E.2d 922 (1992).

Officer has authority to arrest anyone of whom the officer has reasonable suspicion that the person has committed a felony without waiting first to procure a warrant. Chaney v. State, 133 Ga. App. 913 , 213 S.E.2d 68 (1975); Elders v. State, 149 Ga. App. 139 , 253 S.E.2d 817 (1979).

Detective employed by county sheriff's office may make arrest. - County police, including the county sheriff, have general police power to investigate and make arrests as other law enforcement officials. Thus, a detective employed by the county sheriff's office may make an arrest without a warrant if a criminal offense is committed in the officer's presence or within the officer's knowledge. Perry v. State, 204 Ga. App. 643 , 419 S.E.2d 922 (1992).

If facts give police reasonable grounds to believe defendant criminal. - Crucial question is whether the knowledge of the related facts and circumstances give the police officer cause and reasonable grounds to believe that the defendant committed an offense. If it did, an arrest without a warrant is legal. Creamer v. State, 150 Ga. App. 458 , 258 S.E.2d 212 (1979).

What constitutes "reasonable grounds of suspicion" for warrantless arrest is generally to be determined under facts of individual case. Chaney v. State, 133 Ga. App. 913 , 213 S.E.2d 68 (1975).

Middle ground of probable cause needed between suspicion and certainty. - There must be a middle ground between proof to a mathematical certainty that what one thinks one sees happening is in fact a violation of law, and mere suspicion that it may be a criminal act; it is frequently defined as probable cause. Harris v. State, 128 Ga. App. 22 , 195 S.E.2d 262 (1973).

Arrest for offenses committed in officer's presence meets constitutional requirement of probable cause for arrest. Hunter v. Clardy, 558 F.2d 290 (5th Cir. 1977).

State courts require probable cause for warrantless arrest. - Georgia courts have equated this section with the probable cause standard or engrafted a probable cause provision on that section. Nicholson v. United States, 355 F.2d 80 (5th Cir.), cert. denied, 384 U.S. 974, 86 S. Ct. 1866 , 16 L. Ed. 2 d 684 (1966).

Georgia has apparently engrafted a probable cause requirement onto this section. United States v. Romano, 482 F.2d 1183 (5th Cir. 1973), cert. denied, 414 U.S. 1129, 94 S. Ct. 866 , 38 L. Ed. 2 d 753 (1974).

Arrest may be made without warrant. - Police officer has a right to arrest without a warrant when the officer has probable cause to believe a crime is being committed in the officer's presence. Anderson v. State, 123 Ga. App. 57 , 179 S.E.2d 286 (1970).

When knowledge of the related facts and circumstances gives police officers probable cause and reasonable grounds to believe that a person has committed an offense, an arrest, even without a warrant, is legal. Diamond v. Marland, 395 F. Supp. 432 (S.D. Ga. 1975).

If an officer has probable cause to believe that the defendant has committed a felony, an arrest is authorized. Arnsdorff v. State, 152 Ga. App. 515 , 263 S.E.2d 176 (1979).

When the police officer observed the driver of the car travelling at a high rate of speed through the motel parking lot, probable cause existed to stop the driver and make a warrantless arrest of the driver for driving too fast for conditions. Sanders v. State, 204 Ga. App. 545 , 419 S.E.2d 759 (1992).

Probable cause does not require certainty. - When dealing with probable cause, as the name implies, one deals with probabilities, not certainty, and the quantum of proof necessary to establish probable cause is not that level which is necessary for proof of guilt in a trial. Bradford v. State, 149 Ga. App. 839 , 256 S.E.2d 84 , cert. denied, 444 U.S. 936, 100 S. Ct. 285 , 62 L. Ed. 2 d 195 (1979).

Probable cause does require reasonable grounds rather than rumor. - In exigent circumstances such as the imminent removal or destruction of contraband, a police officer may arrest without a warrant, but there must be probable cause. Probable cause means reasonable grounds, and is that apparent state of facts which seem to exist after reasonable and proper inquiry. Rumor, suspicion, speculation, or conjecture is not sufficient and it is axiomatic that an incident search may not precede an arrest and serve as part of its justification. Kelly v. State, 129 Ga. App. 131 , 198 S.E.2d 910 (1973).

Probable cause requires reasonably trustworthy information which convinces prudent person. - Whether or not the arrest violated this section, the constitutional validity of the arrest without a warrant depends upon whether, at the moment the arrest was made, the officers had probable cause to make the arrest - whether at that moment the facts and circumstances within the officers' knowledge and of which the officers had reasonably trustworthy information were sufficient to warrant a prudent person in believing that the defendant had committed or was committing an offense. Peters v. State, 114 Ga. App. 595 , 152 S.E.2d 647 (1966); Rockholt v. State, 129 Ga. App. 99 , 198 S.E.2d 885 (1973); Lynn v. State, 130 Ga. App. 646 , 204 S.E. 346 (1974); Bradford v. State, 149 Ga. App. 839 , 256 S.E.2d 84 (1979); State v. Thomason, 153 Ga. App. 345 , 265 S.E.2d 312 (1980), overruled on other grounds, State v. Stilley, 261 Ga. App. 868 , 584 S.E.2d 9 (2003); Watson v. State, 153 Ga. App. 545 , 265 S.E.2d 871 (1980); Thompson v. State, 155 Ga. App. 101 , 270 S.E.2d 313 (1980).

Probable cause exists when the facts and circumstances within the officers' knowledge, and of which the officers had reasonably trustworthy information are sufficient in themselves to warrant a person of reasonable caution in the belief that an offense has been or is being committed. Quinn v. State, 132 Ga. App. 395 , 208 S.E.2d 263 (1974).

Reasonable police officer standard based on officer's background. - Standard of probable cause is that of "a reasonable, cautious, and prudent peace officer" and must be judged in the light of the officer's experience and training. Harris v. State, 128 Ga. App. 22 , 195 S.E.2d 262 (1973).

When police officer is informant, the reliability of the informant is presumed as a matter of law. Quinn v. State, 132 Ga. App. 395 , 208 S.E.2d 263 (1974).

Phrases "in his presence" and "within his immediate knowledge." - Words "in his presence" in former Code 1933, § 27-207 (see O.C.G.A. § 17-4-20 ) and "within his immediate knowledge" in former Code 1933, § 27-211 (see O.C.G.A. § 17-4-60 ) are synonymous. Piedmont Hotel Co. v. Henderson, 9 Ga. App. 672 , 72 S.E. 51 (1911); Novak v. State, 130 Ga. App. 780 , 204 S.E.2d 491 (1974); Forehand v. State, 130 Ga. App. 801 , 204 S.E.2d 516 (1974); Diamond v. Marland, 395 F. Supp. 432 (S.D. Ga. 1975).

Terms "within the presence of the officers," and "within their immediate knowledge," are synonymous. Harris v. State, 128 Ga. App. 22 , 195 S.E.2d 262 (1973).

An offense is committed in the presence of an officer when the senses of the officer gave the knowledge the offense is being committed. Novak v. State, 130 Ga. App. 780 , 204 S.E.2d 491 (1974); Diamond v. Marland, 395 F. Supp. 432 (S.D. Ga. 1975).

Offense within officer's immediate knowledge. - Because the defendant was arrested immediately after the defendant admitted to the police officer that the defendant threatened the victims, therefore, even though the initial threat was made outside of the officer's presence, it was within the defendant's immediate knowledge and justified the arrest. Brown v. State, 246 Ga. App. 517 , 541 S.E.2d 112 (2000).

When officer sees crime. - Crime is committed in the presence of an officer if the officer sees the crime committed, or by the exercise of any of the officer's senses the officer has knowledge, together with what the officer sees, that a crime is being committed by the person sought to be arrested. Forehand v. State, 130 Ga. App. 801 , 204 S.E.2d 516 (1974); Humphrey v. State, 231 Ga. 855 , 204 S.E.2d 603 , cert. denied, 419 U.S. 839, 95 S. Ct. 68 , 42 L. Ed. 2 d 66 (1974).

Probable cause was a complete defense to an arrestee's false imprisonment claim because the arrest for burglary was made pursuant to exigent circumstances as the suspected offense was committed in the officers' presence or within the officers' immediate knowledge; the officers found the arrestee inside a vacant home and saw that the back door appeared to have been forced open. Gray v. Ector, 541 Fed. Appx. 920 (11th Cir. 2013)(Unpublished).

Arrest for observed traffic violation. - Under O.C.G.A. § 17-4-20(a) , an officer has probable cause to arrest for a traffic violation committed in the officer's presence. State v. Goolsby, 262 Ga. App. 867 , 586 S.E.2d 754 (2003).

Warrantless arrest of the defendant was authorized on the ground that a sale of cocaine was committed in the officers' presence, and after the defendant retreated into a motel room, the exigencies of the situation demanded and excused an immediate entry into the room for the officer to arrest the defendant without a warrant; hence, suppression of the evidence seized thereafter would not have been granted. Fortson v. State, 283 Ga. App. 120 , 640 S.E.2d 693 (2006).

Appeals court rejected the defendant's contention that the arrest was made without probable cause as the evidence sufficiently showed that the defendant's presence at the scene of an alleged robbery, coupled with the defendant's flight from police, justified the arrest. McCoy v. State, 285 Ga. App. 246 , 645 S.E.2d 728 (2007).

Burglary tools and contraband in plain view. - Evidence adduced on a motion to suppress is sufficient to authorize the arrest without a warrant as well as the search of the automobile when the burglar's tools and stolen merchandise are viewed and seen without a search of the automobile. Bass v. State, 123 Ga. App. 705 , 182 S.E.2d 322 (1971).

Defendant close to burglary scene. - Subsequent search of a bag containing items stolen in a burglary was a lawful search incident to the arrest as: defendant was stopped a half mile from the burglary scene; defendant was sweating heavily, carrying a pair of leather gloves on a summer night; and was carrying a bag which the arresting officer testified to observing as loaded with numerous items including a checkbook bearing the address of the burglarized residence. Davis v. State, 203 Ga. App. 227 , 416 S.E.2d 771 , cert. denied, 203 Ga. App. 905 , 416 S.E.2d 771 (1992).

When officers recognize defendant. - Defendant was driving an automobile at a time when the officers knew the defendant's driver's license had been suspended and subsequently arrested the defendant; thus, the evidence found in the accompanying search of the car was admissible. Jackson v. United States, 352 F.2d 490 (5th Cir. 1965), cert. denied, 385 U.S. 825, 87 S. Ct. 55 , 17 L. Ed. 2 d 62 (1966).

Police may detect crime with senses other than sight. - To justify an arrest without a warrant an officer need not see the act which constitutes the crime take place if by any of the officer's senses the officer has personal knowledge of the crime's commission. Forehand v. State, 130 Ga. App. 801 , 204 S.E.2d 516 (1974); State v. Greene, 178 Ga. App. 875 , 344 S.E.2d 771 (1986).

Officer hearing cries of victim. - When a breach of the peace is committed, it is to be regarded as in the officer's presence, so far as to authorize an arrest without a warrant, if the officer hears the noise of the disturbance and the outcries of the person assaulted, whether the officer sees the act itself or not. Ramsey v. State, 92 Ga. 53 , 17 S.E. 613 (1893).

Officer detecting marijuana. - When the crime of possessing marijuana is being committed in the presence of police officers, the arrest of a defendant without a warrant is permissible. Williams v. State, 129 Ga. App. 103 , 198 S.E.2d 683 (1973).

When a police officer, upon observing a person smoking what the officer believes to be a marijuana cigarette and upon discovering a partially smoked cigarette in the same area, clearly has probable cause to believe the officer has witnessed the person possessing less than one ounce of marijuana, a misdemeanor (O.C.G.A. § 16-13-2(b) ), thus authorizing a warrantless arrest. Corbitt v. State, 166 Ga. App. 311 , 304 S.E.2d 123 (1983).

Possession of suspected drugs authorized the arrest of the defendant. Allison v. State, 188 Ga. App. 460 , 373 S.E.2d 273 (1988); Watson v. State, 190 Ga. App. 696 , 379 S.E.2d 817 (1989), overruled on other grounds, Berry v. State, 248 Ga. App. 874 , 547 S.E.2d 664 (2001), overruled on other grounds, Bius v. State, 254 Ga. App. 634 , 563 S.E.2d 527 (2002).

"Valid intrusion" onto defendant's property. - Having seen the defendant commit the offense of marijuana possession during a "valid intrusion" into the defendant's yard, the officer needed no warrant to arrest the defendant. Jenkins v. State, 223 Ga. App. 486 , 477 S.E.2d 910 (1996).

Hot pursuit into home. - Officer who entered a home in hot pursuit of the defendant who had committed a traffic violation in the officer's presence was authorized to make a warrantless arrest. State v. Nichols, 225 Ga. App. 609 , 484 S.E.2d 507 (1997).

Where crime not in officer's senses but offender admits fact. - An offense is within the presence of the arresting party when, although the arresting party cannot be cognizant of the offense by means of the arresting party's own senses, the defendant actually admits that the offense is in fact being so committed. Moore v. State, 128 Ga. App. 20 , 195 S.E.2d 275 (1973).

Arrest for offense committed outside presence. - Fourth Amendment does not prohibit arrests for offenses committed outside the presence of the arresting state officer. Diamond v. Marland, 395 F. Supp. 432 (S.D. Ga. 1975).

O.C.G.A. § 17-4-20(a) provides that an officer may arrest a suspect without a warrant in limited situations, including when the offense is committed in such officer's presence or within such officer's immediate knowledge; or for other cause if there is likely to be failure of justice for want of a judicial officer to issue a warrant. However, § 17-4-20(a) only applies to cases in which a custodial arrest is made and not when a private citizen reports an erratic driver who subsequently exits the vehicle outside of the officer's presence and then is arrested. State v. Cooper, 271 Ga. App. 771 , 611 S.E.2d 90 (2005).

Extra-jurisdictional arrest. - Law enforcement officer may make an arrest without a warrant for an offense committed in the officer's presence, even if the arrest is outside the officer's jurisdiction. Wells v. State, 206 Ga. App. 513 , 426 S.E.2d 231 (1992).

Authority to arrest outside of jurisdiction. - Trial court did not err in granting police officers summary judgment in a citizen's action alleging false imprisonment, assault and battery, and intentional infliction of emotional distress in connection with the defendant's arrest because the arrest was lawful under O.C.G.A. § 17-4-20 since the obstruction occurred in the officers' presence; even if the officers did not have probable cause to arrest the defendant, the officers had the authority and discretion to arrest outside the officers' jurisdiction for offenses committed in the officers' presence and, therefore, the officers' immunity could not be defeated by the officers' decision to arrest outside of the officers' jurisdiction. Taylor v. Waldo, 309 Ga. App. 108 , 709 S.E.2d 278 (2011).

Hostility of defendant and victim's injury indicating battery. - Upon arriving at the scene, an officer observed the reported victim bleeding from the head and saw the defendant outside the victim's shop, and since the defendant became hostile when the officer attempted to ask the defendant what had happened, the officer had probable cause to arrest the defendant for a battery upon the victim as well as a battery upon the officer in that the defendant acted in a hostile manner and resisted arrest. Newsome v. State, 149 Ga. App. 415 , 254 S.E.2d 381 (1979).

Hearsay possible basis of probable cause. - Hearsay is admissible only to explain the officer's conduct, but not in proof of the fact, and hearsay statements may serve as the foundation for probable cause. Bradford v. State, 149 Ga. App. 839 , 256 S.E.2d 84 , cert. denied, 444 U.S. 936, 100 S. Ct. 285 , 62 L. Ed. 2 d 195 (1979).

Officer may testify to reasons for arrest or warrant. - Officer is entitled to explain the basis for making an arrest and to testify as to all of the facts in connection with the arrest; the officer may testify relative to information which the officer obtained from others which afforded the basis for obtaining a warrant, or for making an arrest without a warrant. Bradford v. State, 149 Ga. App. 839 , 256 S.E.2d 84 , cert. denied, 444 U.S. 936, 100 S. Ct. 285 , 62 L. Ed. 2 d 195 (1979).

Arrest for crime in presence made beyond time to procure warrant. - Officer has a right to arrest for a crime committed in the officer's presence; but the rule does not apply if the officer does not act on the occasion the officer sees the crime committed, but delays and seeks to make the arrest after the officer had ample time and opportunity to procure a warrant. Yancey v. Fidelity & Cas. Co., 96 Ga. App. 476 , 100 S.E.2d 653 (1957), appeal dismissed, 213 Ga. 903 , 102 S.E.2d 653 (1958).

Right to make a warrantless arrest for a crime for an offense committed in the officer's presence does not extend beyond a reasonable time and opportunity to procure a warrant. Williams v. State, 133 Ga. App. 66 , 209 S.E.2d 729 (1974).

Arrest on mere oral complaint of another illegal. - When officers attempted, without a warrant, to arrest the defendant upon the mere oral complaint of another, and seize the defendant's person, the arrest was illegal. Porter v. State, 124 Ga. 297 , 52 S.E. 283 , 2 L.R.A. (n.s.) 730 (1905); Dorsey v. State, 7 Ga. App. 366 , 66 S.E. 1096 (1910).

Arrest on information from another officer valid. - When the detective unquestionably had reasonable and articulated cause to believe the driver of a blue and white Cadillac had committed an armed robbery, the police of another city were authorized to act upon the information supplied by the detective and make a warrantless arrest. Knighton v. State, 166 Ga. App. 390 , 304 S.E.2d 512 (1983).

Arrests by police officer on authority of card signed by sheriff are illegal. Gordon v. Hogan, 114 Ga. 354 , 40 S.E. 229 (1901); Cuddens v. State, 152 Ga. 195 , 108 S.E. 788 (1921).

Officer's arrest of restaurant invitee. - Summary judgment was properly granted to a police officer on a restaurant invitee's false imprisonment claim under O.C.G.A. § 51-7-20 . The officer, who was told by the restaurant manager that the invitee refused an order to leave the premises, had probable cause to arrest the invitee without a warrant for criminal trespass under O.C.G.A. § 16-7-21 . Kline v. KDB, Inc., 295 Ga. App. 789 , 673 S.E.2d 516 (2009).

Hotel guest properly arrested for criminal trespass. - Exigent circumstances authorized an officer's warrantless arrest of a hotel guest for criminal trespass because the offense was committed in the officer's presence when the guest refused the officer's request to leave the hotel. Thus, the guest's false imprisonment claim against the hotel was properly dismissed on summary judgment. Lewis v. Ritz Carlton Hotel Co., LLC, 310 Ga. App. 58 , 712 S.E.2d 91 (2011).

Arrest cannot justify search when no crime in police officer's presence. - Search cannot be incident to an arrest if the officer has no reason to believe that the appellant committed a crime in the officer's presence. Brown v. State, 133 Ga. App. 500 , 211 S.E.2d 438 (1974).

Since the defendant has committed no crime in the presence of the arresting officer, and the latter has no valid warrant, the arrest without a warrant will not justify a search, the result of which forms the basis of the charge. Harper v. State, 135 Ga. App. 924 , 219 S.E.2d 636 (1975).

Arrest cannot justify search when no city ordinance violation. - If there is no cause for arrest within the purview of a city ordinance, then a warrantless search and seizure is not legally supportable. Harper v. State, 135 Ga. App. 924 , 219 S.E.2d 636 (1975).

Unlawful arrest not legalized by finding criminal evidence. - Except for the exceptions of this section, a warrant is required to make an arrest legal, and if the arrest so measured is not legal when made, the arrest cannot be legitimated by fruit of a subsequent search. Grant v. State, 152 Ga. App. 258 , 262 S.E.2d 553 (1979).

Evidence procured in connection with search made under illegal warrant is inadmissible unless it appears that a crime was being committed in the presence of the officer and that the search was incidental to an arrest therefor. Grant v. State, 152 Ga. App. 258 , 262 S.E.2d 553 (1979).

Officer cannot determine obscenity and make warrantless arrest. - Ability to make a warrantless arrest for an offense committed in an officer's presence contemplates the officer's ability to determine that an offense has actually been committed; the officer was incorrect in the officer's belief that the officer or the officer's agents may properly make the initial determination concerning the obscenity of a publication and that the officer may make a warrantless arrest if the officer determines that the subject matter of a publication is obscene. Penthouse Int'l, Ltd. v. McAuliffe, 610 F.2d 1353 (5th Cir. 1980), cert. dismissed, 447 U.S. 931, 100 S. Ct. 3031 , 65 L. Ed. 2 d 1131 (1980).

Officer cannot regularly arrest and harass magazine retailers. - When the officer's activities constituted a calculated scheme of warrantless arrests and harassing visits to retailers of publications, the substance of the procedures resulted in a "constructive seizure" of magazines from the shelves of the retail establishments and created an informal system of prior restraint in violation of U.S. Const., amends. 1, and 14. Penthouse Int'l, Ltd. v. McAuliffe, 610 F.2d 1353 (5th Cir. 1980), cert. dismissed, 447 U.S. 931, 100 S. Ct. 3031 , 65 L. Ed. 2 d 1131 (1980).

Public indecency. - Defendant who committed the offense of public indecency in the presence of a police officer was subject to warrantless arrest, and the officer was not required to obtain a warrant simply because the defendant was sitting on the defendant's porch. Collins v. State, 191 Ga. App. 289 , 381 S.E.2d 430 (1989).

There was no excessive force sufficient to indicate an officer violated any clearly established constitutional right when a plaintiff, a woman in her eighth month of pregnancy, passed a road block without permission which provided the officer with arguable probable cause since the plaintiff drove away from the scene, where she then parked and ran into a building, and since the officer only firmly held her and contacted her abdomen in the process; the act of physically holding back a misdemeanor suspect who was attempting to leave the scene, even given her pregnant condition, was not disproportionate although the woman later miscarried. Moore v. Gwinnett County, 967 F.2d 1495 (11th Cir. 1992), cert. denied, 506 U.S. 1081, 113 S. Ct. 1049 , 122 L. Ed. 2 d 357 (1993).

Officer that shot and killed a suspect was entitled to qualified immunity as to an excessive force claim because an objective officer in the officer's situation could have believed reasonably that the suspect posed an immediate threat to the officer's safety; the officer was acting inside the scope of the officer's discretionary authority when the shooting occurred because even if the officer was outside the officer's jurisdiction, the officer was authorized by Georgia law to conduct a warrantless arrest since the suspect was committing an offense, public indecency, within the officer's presence. Wilson v. Miller, 650 Fed. Appx. 676 (11th Cir. 2016)(Unpublished).

Battery of officers after illegal stop justifies arrest. - Though evidence would not have been admissible if discovered as the result of the police officers' unconstitutional roadblock and illegal Terry-stop of the defendant's car before the defendant reached the roadblock, the defendant's gratuitous shoving of police was an aggravated battery, which justified the officers arresting the defendant then and there, even if the defendant was not subsequently charged with the offense of battery. The discovery of drugs the defendant threw while fleeing from that battery meant the discovery of the evidence was sufficiently attenuated from the illegal stop to justify its admission into evidence and denial of the defendant's motion to suppress. Strickland v. State, 265 Ga. App. 533 , 594 S.E.2d 711 (2004).

3. Offender Endeavoring to Escape

Flight is ground for arrest without a warrant when there is reasonable cause to believe the fugitive is the offender and the flight itself makes it impracticable to go elsewhere in search of a warrant. Garrison v. State, 122 Ga. App. 757 , 178 S.E.2d 744 (1970).

Running is not grounds for arrest. - As no criminal activity was observed by police, the mere fact that (according to police) defendant "ran" inside the apartment when the police drove up did not provide probable cause and/or exigent circumstances authorizing the police to enter the defendant's girlfriend's sister's apartment to arrest the defendant without a warrant. State v. Brown, 212 Ga. App. 800 , 442 S.E.2d 818 (1994).

Escape if less than felony committed. - Under this section, an officer can arrest without a warrant "an offender who is endeavoring to escape," even if the offense was less than a felony. Brooks v. State, 114 Ga. 6 , 39 S.E. 877 (1901); Maughon v. State, 7 Ga. App. 660 , 67 S.E. 842 (1910).

Illegal distillery. - Under this section, an officer can arrest without a warrant "an offender who is endeavoring to escape" even if the offense is merely distilling illicit liquor. Williams v. State, 148 Ga. 310 , 96 S.E. 385 (1918).

Burglary. - Under this section, an officer can arrest without a warrant "an offender who is endeavoring to escape" even if the offense was merely burglary. Jackson v. State, 7 Ga. App. 414 , 66 S.E. 982 (1910).

Flight of misdemeanor convict. - Misdemeanor convict who has escaped lawful confinement may be recaptured by any peace officer without a warrant. Williford v. State, 121 Ga. 173 , 48 S.E. 962 (1904).

Insufficient evidence in flight from unmarked vehicle. - Because the circumstances of the defendant's low-speed flight from an uniformed detective, who was driving an unmarked vehicle, were insufficient to present law enforcement with evidence of a particular crime, the defendant could not be charged with the crime of attempting to elude an officer, and police lacked the probable cause sufficient to warrant an arrest for the offense; thus, the search incident to the arrest was invalid, warranting suppression of the evidence seized. Stephens v. State, 278 Ga. App. 694 , 629 S.E.2d 565 (2006).

Right to arrest suspected person without warrant is broader in felony than in misdemeanor cases. Chaney v. State, 133 Ga. App. 913 , 213 S.E.2d 68 (1975).

Using force to make arrest. - Even though an officer may have a legal right to make an arrest, still the officer can use no more force than is reasonably necessary under the circumstances, and cannot use unnecessary violence disproportionate to the resistance offered. When the offense is a felony, a greater force even to the extent of slaying the offender in order to prevent the offender's escape may, when sufficient circumstances so indicate, be justified. But if the arrest is only for a misdemeanor, such extreme and deadly force merely to effect the arrest and prevent escape is not justified. Mullis v. State, 196 Ga. 569 , 27 S.E.2d 91 (1943).

Using force when arresting for misdemeanor. - Reason for limiting the powers of a peace officer in making an arrest for a person committing or attempting to commit a public offense of the grade of misdemeanor is that organized society will suffer less by the temporary escape of such person than it would if the officer should be permitted to take the person's life, or inflict upon the person great bodily harm, to prevent the person's escape. Palmer v. Hall, 380 F. Supp. 120 (M.D. Ga. 1974), modified, 517 F.2d 705 (5th Cir. 1975).

No general right to shoot fleeing misdemeanant. - Notion that a peace officer may, in all cases, shoot one who flees from the officer when about to be arrested is unfounded. Officers have no such power, except in cases of a felony, and then as a last resort, after all other means have failed. It is never allowed when the offense is only a misdemeanor. Palmer v. Hall, 380 F. Supp. 120 (M.D. Ga. 1974), modified, 517 F.2d 705 (5th Cir. 1975).

Deadly force used in pursuing feeing suspected felon. - Officers, who shot and killed a fleeing suspected felon armed with a knife, were entitled to official immunity because it was a discretionary act, during pursuit a bystander twice identified the suspect, and the suspect slashed a knife at one officer, posing an immediate threat of physical violence. Williams v. Boehrer, 530 Fed. Appx. 891 (11th Cir. 2013)(Unpublished).

Except in self-defense, an officer has no right to proceed to the extremity of shedding blood in arresting, or in preventing the escape of one whom the officer has arrested, for an offense less than a felony, even though the offender cannot be taken otherwise. Palmer v. Hall, 380 F. Supp. 120 (M.D. Ga. 1974), modified, 517 F.2d 705 (5th Cir. 1975).

4. Failure of Justice

Phrase "likely to be a failure of justice" means probable ground for believing that there will be failure of justice. Mitchell v. State, 226 Ga. 450 , 175 S.E.2d 545 (1970), cert. denied, 400 U.S. 1024, 91 S. Ct. 585 , 27 L. Ed. 2 d 637 (1971).

Failure of justice may occur if suspect is mobile and leaving area. - When a suspect is mobile and is seen leaving an area after having negotiated a sale with suspected stolen coins, a warrantless arrest is both reasonable and necessary to prevent a failure of justice. Williams v. State, 166 Ga. App. 798 , 305 S.E.2d 489 (1983).

Failure of justice when grounds for arrest develop after entry. - Justification for a warrantless arrest, that there is likely to be a failure of justice for want of a judicial officer to issue a warrant, cannot be extended to excuse an illegal entry, especially when police officers did not decide to arrest until after the entry and the interrogation of the defendant. Griffith v. State, 172 Ga. App. 255 , 322 S.E.2d 921 (1984).

For other cause when there is likely to be failure of justice for want of officer to issue warrant includes a situation when a police officer, knowing that a warrant has been issued for a felony, and with probable cause to believe that if the officer takes the time to procure the warrant the offender will escape, makes the arrest legal although the warrant is not in close physical proximity at the time. Croker v. State, 114 Ga. App. 492 , 151 S.E.2d 846 (1966).

Possible failure of justice alone does not justify warrantless misdemeanor arrest. - Mere possibility of there being a failure of justice does not authorize an officer to attempt an arrest for a misdemeanor without a warrant. Giddens v. State, 152 Ga. 195 , 108 S.E. 788 (1921).

Failure of justice when no one to issue warrant tested by probable cause. - This section has been equated with the probable cause test, or at least whether there was likely to be a failure of justice for want of an officer to issue a warrant was tested by the presence or absence of probable cause. Paige v. Potts, 354 F.2d 212 (5th Cir. 1965).

Otherwise constructive possession of warrant necessary. - When a lawful arrest cannot be made except under a warrant, it must, at the time of making the arrest, be in the possession of the arresting officer, or of another in the neighborhood with whom the officer is acting in concert. Adams v. State, 121 Ga. 163 , 48 S.E. 910 (1904); Maughon v. State, 7 Ga. App. 660 , 67 S.E. 842 (1910).

Illegal warrantless arrest not excused by probable cause. - If the arrest is without a warrant and is illegal, no amount of good faith or probable cause will excuse the defendants who were police officers. Vlass v. McCrary, 60 Ga. App. 744 , 5 S.E.2d 63 (1939).

Detention arrest without valid warrant. - Arrest without a valid warrant to detain the defendant places the detention in the same category as an arrest without a warrant. Grant v. State, 152 Ga. App. 258 , 262 S.E.2d 553 (1979).

Driving under the influence. - When obtaining a warrant to arrest the defendant for driving under the influence would have required at least two hours, during which time physical evidence of the defendant's alleged intoxication would dissipate, the warrantless arrest was proper under O.C.G.A. § 17-4-20 (a) . State v. Fleming, 202 Ga. App. 774 , 415 S.E.2d 513 (1992).

Since evidence of the defendant's intoxication would have dissipated during the time it would have taken for the officer to obtain a warrant for the defendant's arrest, the warrantless arrest was proper under O.C.G.A. § 17-4-20 . Wadsworth v. State, 209 Ga. App. 333 , 433 S.E.2d 419 (1993).

5. Resisting Arrest

Every person has the right to resist an illegal arrest, and may use, in resisting the illegal arrest, such force as is necessary for the purpose. Ronemous v. State, 87 Ga. App. 588 , 74 S.E.2d 676 (1953).

Person may use force proportional to amount used against the person. - One upon whom an arrest is unlawfully being made by an officer has the right to resist such arrest, force with force, proportionate to that being used by those detaining the person. Mullis v. State, 196 Ga. 569 , 27 S.E.2d 91 (1943); Smith v. State, 84 Ga. App. 79 , 65 S.E.2d 709 (1951).

Arrest for prior spouse beating. - Fact that the defendant's wife told the officers in the defendant's presence that he had beat her and she wanted him locked up did not render legal the arrest without a warrant of the defendant who was at home doing nothing when the police arrived, and the defendant was within his rights in resisting such arrest. Ronemous v. State, 87 Ga. App. 588 , 74 S.E.2d 676 (1953).

Arrestee who knows of felony charge cannot resist. - It is the duty of an officer, when authorized to arrest, but when the circumstances afford reason to believe that the officer's object and official character are unknown to the person whom the officer seeks to arrest, so to inform the person; but an omission to do so will not justify the person arrested, or sought to be arrested, in resisting the arrest if the person in fact already knows, or on reasonable and probable grounds believes, that the person is under a charge of felony for which an arrest is being attempted. Morton v. State, 190 Ga. 792 , 10 S.E.2d 836 (1940).

Right to kill if arrestee fears felony by officer. - If, during an unlawful arrest, the officer commits, or reasonably appears about to commit a felony upon the arrestee, such as an assault with intent to kill, using a weapon likely to produce death, or if the officer's violent behavior is enough to frighten a reasonable person into expecting a felony and causes the detainee to act from fear rather than for revenge, the detainee may protect oneself without being guilty of a crime, even if the person slays the officer. Mullis v. State, 196 Ga. 569 , 27 S.E.2d 91 (1943).

No right to killing mere unlawful arrest without felony. - Mere fact of unlawful arrest, in the absence of an application of unlawful force amounting to or reasonably appearing to amount to a felony, will not authorize the killing of the officer. Mullis v. State, 196 Ga. 569 , 27 S.E.2d 91 (1943).

Killing officer is manslaughter if injury less than felony feared. - If an officer does not attempt or reasonably appear to attempt a felony, but only the misdemeanor of an unlawful arrest, or if the person arrested is only put in fear of a lesser injury than that of a felony, killing of the officer would be manslaughter. Mullis v. State, 196 Ga. 569 , 27 S.E.2d 91 (1943).

Killing officer without cause to know official status. - To slay an officer to avoid being taken into custody, while having reasonable grounds of belief that the person is an arresting officer, and that the person's object is to make a lawful arrest for a felony, is murder. If the homicide is committed without reasonable cause to know the person's official character or purpose, and without malice, the homicide is manslaughter. Morton v. State, 190 Ga. 792 , 10 S.E.2d 836 (1940).

Killing known officer to prevent capture is murder. - When a person is lawfully arrested and has notice or knowledge, or by belief or reasonable grounds for belief has the equivalent of knowledge, that the person making the arrest is an officer, it is the duty of the person arrested to submit quietly. If, under such circumstances and merely to prevent the officer from lawfully arresting the person in a lawful way, the person kills the officer, the crime is murder. Mullis v. State, 196 Ga. 569 , 27 S.E.2d 91 (1943).

Use of force when arresting criminal who knows status as police officer. - If an offender has the equivalent of knowledge that the person making the arrest is an arresting officer, it is the duty of such person to submit quietly to arrest; and in case the person refuses to submit, the officer has the right to use such force as is reasonably necessary to accomplish the arrest. Morton v. State, 190 Ga. 792 , 10 S.E.2d 836 (1940).

Use of deadly force when officer's life is in peril. - Officer was entitled to qualified immunity for an excessive force claim in a Bivens action because the officer was standing in a narrow space between two vehicles, the decedent was disobeying the officer's orders to put the decedent's hands up, and the decedent's car suddenly moved forward; in a split second decision, it was reasonable under the Fourth Amendment and O.C.G.A. § 17-4-20 to use deadly force when the officer had probable cause to believe that the officer's life was in peril. Robinson v. Arrugueta, 415 F.3d 1252 (11th Cir. 2005), cert. denied, 546 U.S. 1109, 126 S. Ct. 1063 , 163 L. Ed. 2 d 887 (2006).

Right to prevent unlawful arrest of another. - No person should be punished for resisting or obstructing the illegal arrest of another. Prichard v. State, 160 Ga. 527 , 128 S.E. 655 (1925).

Unauthorized physical resistance to warrantless arrest. - Whether a warrantless arrest violates the statutory authorization depends upon whether at the time of the arrest the officer had probable cause to make an arrest; when the officer was assaulted while in the execution of the officer's office, and when making the arrest was in the lawful discharge of the officer's office, physical resistance to the legal arrest was not authorized. Veit v. State, 182 Ga. App. 753 , 357 S.E.2d 113 (1987).

Misdemeanor obstruction conviction was proper despite acquittal on original charge. - Because the police officer had grounds to arrest the defendant for public drunkenness and was in the process of making the arrest when the defendant shouted at the officer and attempted to walk away, conviction of the defendant for misdemeanor obstruction was proper even though the defendant was acquitted of the charge of public drunkenness. Williams v. State, 228 Ga. App. 698 , 492 S.E.2d 708 (1997).

6. Consent

Probable cause and a warrant are not required for a search and seizure which is conducted pursuant to consent. Dawson v. State, 166 Ga. App. 199 , 303 S.E.2d 532 (1983).

Mere acquiescence to authority of officer did not substitute for free and voluntary consent. - Despite the fact that the trial court concluded that the second of two defendant's warrantless arrest was unauthorized under O.C.G.A. § 17-4-20(a) , because mere acquiescence to the authority asserted by a police lieutenant by both the defendants could not substitute for a free and voluntary consent to search, the trial court erred in finding that the acquiescence granted valid consent to the officer. Thus, the trial court's grant of the motions to suppress was reversed, in part. Hollenback v. State, 289 Ga. App. 516 , 657 S.E.2d 884 (2008).

Authority of Local Officers

This section applied to violations of municipal ordinances. State v. Koon, 133 Ga. App. 685 , 211 S.E.2d 924 (1975); Whaley v. State, 175 Ga. App. 493 , 333 S.E.2d 691 (1985).

Applied to state and municipal officers. - This section was applicable alike to state and municipal arresting officers. Faulkner v. State, 166 Ga. 645 , 144 S.E. 193 (1928).

City police officer may arrest without warrant for city ordinance violation. - Police officer under city ordinance is as much under the protection of the law in making an arrest as any public officer, such as sheriff, bailiff, or constable; therefore, a town police officer has the right to arrest a defendant, without a warrant, for a violation in the police officer's presence of a town ordinance. Palmer v. State, 195 Ga. 661 , 25 S.E.2d 295 (1943).

No duty to arrest for purposes of tort action. - Authority to arrest provided by O.C.G.A. § 17-4-20 does not create a duty to arrest for purposes of a tort action. Landis v. Rockdale County, 212 Ga. App. 700 , 445 S.E.2d 264 (1994).

State statute violation in officer's presence. - Police officer of a city, in making an arrest for an offense against state law, or for a violation of an ordinance of the municipality, committed in the city limits, fell within the protection of this section. Thus, a city police officer had authority to arrest without a warrant one who violates a state statute in the officer's presence, or to arrest within the city one who violates a city ordinance in the officer's presence. Mullis v. State, 196 Ga. 569 , 27 S.E.2d 91 (1943).

Where no local ordinance violation. - In the absence of any evidence as to a warrant or as to any municipal ordinance that was violated, the burden was on the state to show that the defendant violated some law of the state in the presence of the deceased police officer. Mullis v. State, 196 Ga. 569 , 27 S.E.2d 91 (1943).

State may justify city police officer's attempted arrest by showing ordinance. - When a military police officer has lawful custody of a soldier under arrest for violation of military orders, and the soldier is violently and turbulently resisting the arrest, and when several civilians go to the assistance of the military police officer, and under such circumstances, a city police officer comes to the place and attempts to arrest the soldier, and is killed by the soldier, it is proper for the state to introduce in evidence the city ordinance defining "disorderly conduct," as illustrating the legality of the arrest, or attempt to arrest, by the city police officer. Reed v. State, 195 Ga. 842 , 25 S.E.2d 692 (1943).

Arrest not unlawful although car not entirely within jurisdiction. - Warrantless arrest which was otherwise authorized under this section was not rendered illegal merely because the arrest was effected while the individual arrested was in a vehicle not completely situated within the officer's jurisdictional limits. Rick v. State, 152 Ga. App. 519 , 263 S.E.2d 213 (1979).

Officer need not show insufficient time to procure warrant. - If a municipal ordinance or a state law has been violated in the presence of a municipal police officer, it is not only the right but the duty of the officer to immediately make an arrest of the violator; under such circumstances it is not necessary, in order to establish the legality of the arrest, to show that the officer did not have the time and opportunity to procure a warrant. Reed v. State, 195 Ga. 842 , 25 S.E.2d 692 (1943).

Sheriff may arrest without warrant if offense in sheriff's presence. - Like other police officers or private persons, a sheriff has the power to arrest an offender without a warrant if the offense is committed in the sheriff's presence. Elder v. Camp, 193 Ga. 320 , 18 S.E.2d 622 (1942).

Seizure without warrant of illegal items in plain view in business place. - Sheriff may seize unlawfully kept property without a warrant for search, seizure, or arrest of the offender when the sheriff lawfully enters a place of business open to the sheriff as well as other members of the public under an implied invitation to enter, and finds in such place of business "slot machines" illegally kept by the owner or operation of such place of business. But, the sheriff has no authority to search private premises of the owner to find slot machines in the absence of a warrant. Elder v. Camp, 193 Ga. 320 , 18 S.E.2d 622 (1942).

Inspectors of roads and bridges sworn in as deputy sheriffs may arrest for the violation of the criminal laws of this state. Earl v. State, 124 Ga. 28 , 52 S.E. 78 (1905).

Probation officers arresting probationer when not present during offense. - While the jurisdiction of probation officers to arrest offenders is limited to one class of persons, the probationers under their supervision, their power of arrest is broader with regard to that class of persons than is the general power of arrest by officers since the probation officer may arrest a probationer without a warrant for the alleged violation of any condition of the offender's probation, which might be the commission of a felony or misdemeanor, or a mere violation of some rule prescribed for the offender's conduct, even though such violation of the conditions of the offender's probation was not committed in the probation officer's presence. Vandiver v. Manning, 215 Ga. 874 , 114 S.E.2d 121 (1960).

Violation of state arrest law creates no federal liability if no federal Constitution violation. - Even when a police officer violates a state arrest statute, the officer is not liable under the federal Civil Rights Act (42 U.S.C. § 1983) unless the officer also violated federal constitutional law governing warrantless arrests. Diamond v. Marland, 395 F. Supp. 432 (S.D. Ga. 1975).

Statute did not apply to rules governing suspects already in custody. - Police officer was properly suspended for using a choke-hold on a handcuffed suspect in violation of department rules; O.C.G.A. § 17-4-20(d) , prohibiting local rules that limited an officer's abilities to apprehend suspects, did not apply because the officer was not apprehending the suspect, but was trying to recover evidence from the defendant's mouth. Mercure v. City of Atlanta Civil Service Board, 327 Ga. App. 840 , 761 S.E.2d 393 (2014).

Jury Instructions

Justification for warrantless arrest province of jury. - Whether, under all the circumstances of the case, including the facilities for obtaining a warrant according to the spirit of this section, there was or was not cause for attempting the arrest without a warrant is a question for the jury. Thomas v. State, 91 Ga. 204 , 18 S.E. 305 (1892).

Error not to charge jury on trooper's probable cause. - When, on the trial of a state trooper for false imprisonment, it appears from the evidence that the trooper's sole defense was that the trooper made the arrest for drunkenness upon the public highway without a warrant when the trooper in good faith had probable cause to believe that such offense was being committed in the trooper's presence, it is error requiring the grant of a new trial for the trial court to fail to instruct the jury on this defense. Henderson v. State, 95 Ga. App. 830 , 99 S.E.2d 270 (1957).

Error to cite exceptions if arrest illegal in any case. - Absent any evidence to show that an arrest without a warrant would have been authorized, the court erred in charging the jury that part of this section which declared the circumstances under which an arrest may be lawfully made without a warrant, since the jury was not also instructed that under the evidence the arrest would have been illegal. McIntosh v. State, 191 Ga. 736 , 13 S.E.2d 770 (1941).

Charge differentiating arrests by citizens and police harmless as authority same. - When the arrest was made without a warrant, and the only basis for the arrest was that the crime was being committed in the presence of the person making the arrest, whether the defendant acted as an officer or as a private citizen was immaterial, since the person's authority as either was the same; therefore, the charge injecting this issue in the case could not have been confusing to the jury or harmful to the defendant. Atlantic Coast Line R.R. v. Wenger, 90 Ga. App. 267 , 83 S.E.2d 58 (1954).

Charging exact language of section unnecessary. - Charge in entire harmony but not in exact language is neither a misstatement of law nor misleading. Cobb v. Bailey, 35 Ga. App. 302 , 133 S.E. 42 (1926).

Proper charge. Alexander v. State, 160 Ga. 769 , 129 S.E. 102 (1925).

General Consideration

Person who is arrested and released within the time prescribed by law on an appearance bond is not entitled to a commitment hearing. Watts v. Pitts, 253 Ga. 501 , 322 S.E.2d 252 (1984).

Time for holding commitment hearing. - O.C.G.A. § 17-4-26 requires that a person arrested be brought before a committing judicial officer within 72 hours after arrest, but the statute does not require a commitment hearing within that time; to the extent that the language in footnote 3 of Boyd v. St. Lawrence, 281 Ga. 300 n. 3 (2006), conflicts with this holding, it is hereby disapproved. Tidwell v. Paxton, 282 Ga. 641 , 651 S.E.2d 714 (2007).

Failure to hold commitment hearing. - There was no constitutional error after a magistrate failed to hold a commitment hearing when an accused was brought before the magistrate within 72 hours of arrest. State v. Godfrey, 204 Ga. App. 58 , 418 S.E.2d 383 , cert. denied, 204 Ga. App. 922 , 418 S.E.2d 383 (1992).

Sanction for violating O.C.G.A. § 17-4-62 is that the defendant shall be released and does not require suppression of evidence gathered in the interim. Chisholm v. State, 231 Ga. App. 835 , 500 S.E.2d 14 (1998).

Duty of custodians. - Although the plain language of O.C.G.A. §§ 17-4-21 and 17-4-26 directs the "arresting" officer to bring the detainee before a judicial officer, but omits any similar directive for custodians or third party entities entrusted with incarcerating the arrestee, the court was unwilling to allow Burke County, Georgia, to hide behind a technicality. However, whether the county's inaction amounted to a constitutional violation could not be resolved until the facts surrounding the agreement between the City of Midville and Burke County and the relationship between the Midville Police Department and the Burke County Sheriff's Department were more fully developed. Bunyon v. Burke County, 306 F. Supp. 2d 1240 (S.D. Ga. 2004).

Cited in Johnson v. Plunkett, 215 Ga. 353 , 110 S.E.2d 745 (1959); McCranie v. Mullis, 221 Ga. 617 , 146 S.E.2d 723 (1966); Jackson v. State, 225 Ga. 39 , 165 S.E.2d 711 (1968); Blair v. State, 230 Ga. 409 , 197 S.E.2d 362 (1973); Gill v. Decatur County, 129 Ga. App. 697 , 201 S.E.2d 21 (1973); Thomas v. State, 233 Ga. 237 , 210 S.E.2d 675 (1974); State v. Houston, 234 Ga. 721 , 218 S.E.2d 13 (1975); Tarpkin v. State, 236 Ga. 67 , 222 S.E.2d 364 (1976); Lewis v. State, 246 Ga. 101 , 268 S.E.2d 915 (1980); Lang v. Baker, 248 Ga. 431 , 286 S.E.2d 433 (1982); Tucker v. State, 249 Ga. 323 , 290 S.E.2d 97 (1982); Jones v. State, 252 Ga. 385 , 313 S.E.2d 103 (1984).

Limitations on Release for Delay

It was not the intent of this section to require a useless act. Johnson v. State, 215 Ga. 839 , 114 S.E.2d 35 (1960), cert. denied, 368 U.S. 849, 82 S. Ct. 81 , 7 L. Ed. 2 d 47 (1961).

Indictment of defendant in capital case within three days. - After a defendant was indicted in a capital case within 72 hours after the defendant's arrest, the incarceration was by reason of the indictment and not the warrant; this section could have no application since a committal court would have no jurisdiction to determine whether or not there was probable cause for indictment after the indictment had already been returned. Johnson v. State, 215 Ga. 839 , 114 S.E.2d 35 (1960), cert. denied, 368 U.S. 849, 82 S. Ct. 81 , 7 L. Ed. 2 d 47 (1961).

Failure to bring defendant to magistrate not unconstitutional. - Though this section required that an officer arresting under a warrant bring the person arrested before a committing officer within 72 hours after arrest, failure to take an arrestee before a magistrate was not a federal constitutional issue. Stephenson v. Gaskins, 539 F.2d 1066 (5th Cir. 1976).

Requirement for hearing within three days. - Defendant arrested on a warrant must be taken before the committing magistrate within 72 hours after the defendant's arrest but this means that the defendant must be presented to the committing magistrate and notified as to when and where the committal hearing is to be held, not that the hearing itself must be within the 72-hour period. Whitfield v. State, 115 Ga. App. 231 , 154 S.E.2d 294 (1967).

Release not required if hearing not within three days. - First sentence of this section imposed no penalty if the arresting officer failed to take the accused before a committing officer within 72 hours, nor was there any provision that the offender was to be released if no committal hearing was held within 72 hours. Pennaman v. Walton, 220 Ga. 295 , 138 S.E.2d 571 (1964).

Detention illegal without hearing in three days. - When the facts show that the arresting officers did bring the defendant before the magistrate within 72 hours after the arrest, the fact that the magistrate set the committal hearing more than 72 hours after the arrest does not make the defendant's detention illegal. Dodson v. Grimes, 220 Ga. 269 , 138 S.E.2d 311 (1964).

There is no requirement for a hearing within 72 hours after the arrest and the fact that one is not set until more than 72 hours after such arrest would not make the prisoner's detention illegal. Beavers v. State, 132 Ga. App. 94 , 207 S.E.2d 550 (1974).

Denial of hearing ground for preindictment habeas corpus. - Although not ground for post-conviction habeas corpus due to mootness, denial of a commitment hearing would be ground for a preindictment habeas corpus. McClure v. Hopper, 234 Ga. 45 , 214 S.E.2d 503 (1975).

Failure to conduct commitment hearing moot after grand jury indictment. - Issue of whether the defendant was entitled to habeas relief on the ground that the defendant was denied the defendant's right to a commitment hearing prior to the indictment was moot after the defendant had been indicted by the grand jury. Spears v. Johnson, 256 Ga. 518 , 350 S.E.2d 468 (1986).

Court still has jurisdiction despite illegal detention. - Although an arresting officer may be liable in damages for false arrest and imprisonment when the officer detains the defendant in an illegal manner, this is ordinarily immaterial so far as the jurisdiction of the court over the defendant is concerned after jurisdiction has been acquired by accusation or indictment, and appearance and pleading by the defendant, in a criminal case. French v. State, 99 Ga. App. 149 , 107 S.E.2d 890 (1959).

Delay does not invalidate trial and judgment. - Delay in the holding of the commitment hearing within the requirements of this section in no way vitiated the indictment, trial, verdict, and judgment of conviction and sentence. Heard v. State, 126 Ga. App. 62 , 189 S.E.2d 895 (1972); Robinson v. State, 182 Ga. App. 423 , 356 S.E.2d 55 (1987).

Arrestee misbehavior may justify delay. - What is reasonable diligence depends upon the peculiar facts of each case; the conduct of the prisoner may excuse the delay. Blocker v. Clark, 126 Ga. 484 , 54 S.E. 1022 , 7 L.R.A. (n. s.) 268, 8 Ann. Cas. 31 (1906).

General Consideration

Even if the arrest warrant is invalid, if an arrest is plainly supported by probable cause, the arrest is nonetheless legal. Roberts v. State, 252 Ga. 227 , 314 S.E.2d 83 , cert. denied, 469 U.S. 873, 105 S. Ct. 228 , 83 L. Ed. 2 d 157 (1984).

Mistake in citation of statute irrelevant. - Affidavit given in support of an arrest warrant for the defendant contained all of the required information and was valid; the fact that the affidavit mis-cited the statute that the defendant was accused of violating was irrelevant. Golden v. State, 299 Ga. App. 407 , 683 S.E.2d 618 (2009), cert. denied, No. S09C1904, 2010 Ga. LEXIS 56 (Ga.); cert. denied, 560 U.S. 941, 130 S. Ct. 3358 , 176 L. Ed. 2 d 1250 (2010).

Prosecutor not absolutely immune for advising police on filling out affidavit. - Prosecutor was not entitled to absolute immunity for giving legal advice to police officers on how to fill out affidavits for arrest against a complainant who had sworn a warrant application against one of the officers; had the prosecutor signed the affidavit for the arrest personally, the prosecutor would not have received absolute immunity because the document would have been a sworn factual statement. Because the prosecutor's actions were not in preparation of the prosecutor's own case, were not part of the judicial process, and the prosecutor would not have received absolute immunity had the prosecutor signed the documents personally, the district court erred in granting the prosecutor absolute immunity for giving legal advice to the police. Holden v. Sticher, F.3d (11th Cir. May 24, 2011)(Unpublished).

Cited in Dodson v. Grimes, 220 Ga. 269 , 138 S.E.2d 311 (1964); Lovett v. State, 111 Ga. App. 295 , 141 S.E.2d 595 (1965); Lowe v. Turner, 115 Ga. App. 503 , 154 S.E.2d 792 (1967); Shaw v. Jones, 226 Ga. 291 , 174 S.E.2d 444 (1970); Kametches v. State, 242 Ga. 721 , 251 S.E.2d 232 (1978); Anglin v. State, 244 Ga. 1 , 257 S.E.2d 513 (1979); Roth v. Carey, 159 Ga. App. 165 , 282 S.E.2d 918 (1981); Myron v. State, 248 Ga. 120 , 281 S.E.2d 600 (1981); Pittman v. State, 175 Ga. App. 50 , 332 S.E.2d 356 (1985).

Requirements for Affidavit or Warrant

Necessary information for arrest affidavit. - This section required information by way of affidavit in procuring an arrest warrant as to the offense committed, the county in which committed, the time committed and, when relevant, the person against whom the offense is committed. Nicholson v. United States, 355 F.2d 80 (5th Cir.), cert. denied, 384 U.S. 974, 86 S. Ct. 1866 , 16 L. Ed. 2 d 684 (1966).

Affidavits and warrants must comply with statutory information standard. - This section omitted the "substantial compliance" language formerly used and, hence, requires compliance of affidavits and warrants with the statutory standard of required information. Lowe v. Turner, 115 Ga. App. 503 , 154 S.E.2d 792 (1967).

Probable cause is not required for issuance of arrest warrant. Davis v. State, 155 Ga. App. 511 , 271 S.E.2d 648 (1980).

Probable cause not applicable to arrest warrants. - Probable cause requirements of an affidavit on which a search warrant is issued are not applicable to arrest warrants. Smith v. Stynchcombe, 234 Ga. 780 , 218 S.E.2d 63 (1975), cert. denied, 423 U.S. 1089, 96 S. Ct. 882 , 47 L. Ed. 2 d 99 (1976).

Because the defendant was lawfully arrested pursuant to the fifth warrant for the crime of armed robbery, and the warrant was sworn to, signed, and executed, the defendant's arrest was not illegal, and the defendant's fingerprints were not subject to exclusion; moreover, there was no requirement in Georgia that an arrest warrant had to meet the probable cause requirements of an affidavit for a search warrant. Skaggs-Ferrell v. State, 287 Ga. App. 872 , 652 S.E.2d 891 (2007).

Arrest legal when affidavit meets statutory requirements. - When affidavit serving as basis for arrest warrant issued against the defendant satisfies the statutory requirements of O.C.G.A. §§ 17-4-41 and 17-4-45 , an arrest is not illegal and confessions obtained as the product of such affidavit and arrest are not tainted evidence. Hammond v. State, 157 Ga. App. 647 , 278 S.E.2d 188 (1981).

Warrant affidavit complying with O.C.G.A. § 17-4-41 is not alone sufficient to demonstrate the validity of an arrest warrant because probable cause must still be shown to the issuing magistrate. Devier v. State, 253 Ga. 604 , 323 S.E.2d 150 (1984), cert. denied, 471 U.S. 1009, 105 S. Ct. 1877 , 85 L. Ed. 2 d 169 (1985).

All that is required for issuance of an arrest warrant is an affidavit stating the offense; the time, date, and place of occurrence of the offense; the person against whom such offense was committed; and a statement describing the offense, or offenses. Davis v. State, 155 Ga. App. 511 , 271 S.E.2d 648 (1980).

Affidavit must give sufficient information. - Substantial compliance with the provisions of former Penal Code 1910, §§ 904 and 906 (see O.C.G.A. §§ 17-4-41 and 17-4-46 ) with reference to affidavits and warrants for the arrest of offenders against the penal laws, and the form of such warrants, was all that was required. Kumpe v. Hall, 167 Ga. 284 , 145 S.E. 509 (1928).

Affidavit in support of a battery defendant's arrest was sufficient since the affidavit stated that the defendant committed the battery at a given time, date, and place, and the affidavit stated that the defendant intentionally caused physical harm to the victim by choking and hitting the victim with the defendant's fists. Dunn v. State, 234 Ga. App. 623 , 507 S.E.2d 170 (1998).

Requirements for affidavits satisfied. - Defendant's plea counsel did not render ineffective assistance of counsel by failing to challenge the legality of arrest warrants because all four of the supporting affidavits unquestionably satisfied the requirements of O.C.G.A. § 17-4-41(a) , and based on the information provided in the supporting affidavits, the officer in the case supplied the issuing magistrate with sufficient information to support an independent finding that probable cause existed for the issuance of the warrants; the defendant failed to demonstrate that the defendant's plea counsel's failure to challenge the legality of the warrants prejudiced the defendant because even if counsel had challenged the warrants and was able to suppress any inculpatory statement the defendant made, there was nothing to suggest that the defendant's guilty plea resulted from such a statement. Murray v. State, 307 Ga. App. 621 , 705 S.E.2d 726 (2011).

Only name of offense necessary, not details. - Under the former provisions of this section, it was only necessary to name the offense committed by the defendant, in the affidavit and warrant, and it was not necessary to set out the facts which constitute the offense. McAlpin v. Purse, 86 Ga. 271 , 12 S.E. 412 (1890); Brown v. State, 109 Ga. 570 , 34 S.E. 1031 (1900); Tollison v. George, 153 Ga. 612 , 112 S.E. 896 (1922).

Affidavit naming crime and warrant citing "misdemeanor." - When an affidavit upon which a criminal warrant was founded stated that the accused did commit the offense of a misdemeanor by disposing of a radio upon which another held mortgage, and the warrant stated that the accused "did commit the offense of misdemeanor," the affidavit and warrant were sufficient to charge a crime. Cain v. Kendrick, 199 Ga. 147 , 33 S.E.2d 417 , answer conformed to, 72 Ga. App. 392 , 33 S.E.2d 883 (1945).

Affidavit need only give date and county of crime. - This section did not require the exact time of day or the specific location in the county to be given. It was sufficient to state the date the alleged offense was committed and the county in which the offense allegedly occurred. Courtenay v. Randolph, 125 Ga. App. 581 , 188 S.E.2d 396 (1972); Lyle v. State, 131 Ga. App. 8 , 205 S.E.2d 126 (1974).

Warrant void without time and place of offense. - Warrant that does not allege when or where the crime was committed is void. Thorpe v. Wray, 68 Ga. 359 (1882).

Omitting time does not invalidate warrant. - Failure to state the time of commission is a mere technical defect and does not void the warrant. Courtenay v. Randolph, 125 Ga. App. 581 , 188 S.E.2d 396 (1972); Thompson v. State, 142 Ga. App. 888 , 237 S.E.2d 419 , rev'd on other grounds, 240 Ga. 296 , 240 S.E.2d 87 (1977).

Standard accusation form sufficient with affidavit for arrest. - Standard printed affidavit and accusation form, accompanied by a previously prepared affidavit for arrest, is legally sufficient. Faulkner v. State, 146 Ga. App. 604 , 247 S.E.2d 147 (1978).

No arrest affidavit on record makes standard accusation insufficient. - Standard printed affidavit and accusation form is insufficient when no affidavit for arrest is included in the record. Faulkner v. State, 146 Ga. App. 604 , 247 S.E.2d 147 (1978).

Merely charging "misdemeanor" insufficient. - Accusation supported only by an affidavit charging the commission of a "misdemeanor" and not naming the specific offense is legally insufficient. Faulkner v. State, 146 Ga. App. 604 , 247 S.E.2d 147 (1978).

Misdemeanor accusation did not have to be based on arrest warrant. - There was no merit to a defendant's argument that reversal of the defendant's theft by deception conviction was required because the arrest warrant was not supported by a sufficient affidavit under O.C.G.A. § 17-4-41 . Because the defendant had not identified any evidence obtained as a result of the arrest, a new trial was not required; moreover, a misdemeanor accusation did not have to be based on an arrest warrant. Bruster v. State, 291 Ga. App. 490 , 662 S.E.2d 265 (2008).

Accusation incorporated by reference not sufficient. - Affidavit which sets forth only that the defendant has committed the offense of misdemeanor and purports to incorporate by reference the substance of an accusation does not serve as the basis for an accusation and does not comport with this section. Bickley v. State, 150 Ga. App. 669 , 258 S.E.2d 306 (1979).

Additional information needed if reliance on informer. - If reliance under this section was based on an informer, the affidavit submitted must contain sufficient facts to show: (1) reasons for the informer's reliability; (2) that the affidavit either specifically states how the informant obtained the informant's information or describes the alleged criminal activity in such detail that the magistrate may know that it is more than a casual rumor circulating in the underworld or an accusation based merely on an individual's general reputation; and (3) that the information is not stale. Dailey v. State, 136 Ga. App. 866 , 222 S.E.2d 682 (1975).

Counsel found ineffective when affidavits deficient. - Defendant's trial counsel was ineffective after counsel failed to make minimal inquiries which would have revealed that the arrest of the defendant was predicated on warrants issued without any showing of probable cause before the issuing magistrate; the warrants for defendant's arrest were apparently issued solely on the basis of the attached affidavits which, although satisfying the requirements of O.C.G.A. § 17-4-41 , did not supply the magistrate with sufficient judgment that probable cause existed for the issuance of the warrants. Pitts v. State, 209 Ga. App. 47 , 432 S.E.2d 643 (1993).

Remedies for unjustified arrest. - If the plaintiff was arrested under a void warrant, the action is for false imprisonment; if the warrant is valid, malicious prosecution is the remedy. Courtenay v. Randolph, 125 Ga. App. 581 , 188 S.E.2d 396 (1972).

Verbal error not fatal if affidavit upholds warrant. - Mere verbal inaccuracy will not, if the meaning is clear, vitiate an affidavit or warrant, but the affidavit must uphold the warrant. Dickson v. State, 62 Ga. 583 (1879).

For larceny (now theft) affidavit held sufficient in city court trial, see Taylor v. State, 120 Ga. 484 , 48 S.E. 158 (1904).

For misdemeanor properly charged in affidavit, see Williams v. State, 107 Ga. 693 , 33 S.E. 641 (1899).

For proper allegation of assault with intent to murder, see Sasser v. McDaniel, 73 Ga. 547 (1884).

Arrest warrant for murder supported by probable cause. - Arrest warrant for murder was supported by probable cause as the record clearly showed that the magistrate issuing the warrant was provided the officer's affidavit and was informed by the same officer that a surviving victim had identified the appellant from a photographic line-up as one of the shooters and the appellant's identification and use of a gun during the shooting was corroborated by the facts and circumstances officers had gathered from witnesses and evidence at the scene of the shooting. Williams v. State, 298 Ga. 538 , 783 S.E.2d 594 (2016).

General Consideration

Any citizen may procure arrest warrant. - Procurement of an arrest warrant is not peculiar to the official duties of a peace officer. Any private citizen may do so and the procedure followed is the same. Cleland v. U.S. Fid. & Guar. Ins. Co., 99 Ga. App. 130 , 107 S.E.2d 904 (1959).

Mistake in citation of statute was irrelevant. - Affidavit given in support of an arrest warrant for the defendant contained all of the required information and was valid; the fact that the affidavit mis-cited the statute that the defendant was accused of violating was irrelevant. Golden v. State, 299 Ga. App. 407 , 683 S.E.2d 618 (2009), cert. denied, No. S09C1904, 2010 Ga. LEXIS 56 (Ga.); cert. denied, 560 U.S. 941, 130 S. Ct. 3358 , 176 L. Ed. 2 d 1250 (2010).

Cited in Dodson v. Grimes, 220 Ga. 269 , 138 S.E.2d 311 (1964); Lovett v. State, 111 Ga. App. 295 , 141 S.E.2d 595 (1965); Hutto v. State, 116 Ga. App. 140 , 156 S.E.2d 498 (1967); Shaw v. Jones, 226 Ga. 291 , 174 S.E.2d 444 (1970); Roth v. Carey, 159 Ga. App. 165 , 282 S.E.2d 918 (1981).

Requirements for Affidavit

Complete statutory information required on affidavits and warrants. - This section omits the "substantial compliance" language formerly used and, hence, requires compliance of affidavits and warrants with the statutory standard of required information. Lowe v. Turner, 115 Ga. App. 503 , 154 S.E.2d 792 (1967).

Only information required on affidavit for warrant. - In procuring an arrest warrant, this section required an affidavit containing information as to the offense committed, the county in which committed, the time committed and, when relevant, the person against whom the offense was committed. Nicholson v. United States, 355 F.2d 80 (5th Cir.), cert. denied, 384 U.S. 974, 86 S. Ct. 1866 , 16 L. Ed. 2 d 684 (1966).

All that is required for issuance of an arrest warrant is an affidavit stating the offense; the time, date and place of occurrence of the offense; the person against whom such offense was committed; and a statement describing the offense, or offenses. Davis v. State, 155 Ga. App. 511 , 271 S.E.2d 648 (1980).

Arrest legal when affidavit meets statutory requirements. - When affidavit serving as basis for arrest warrant issued against the defendant satisfies statutory requirements of O.C.G.A. §§ 17-4-41 and 17-4-45 , arrest is not illegal and confessions obtained as the product of such affidavit and arrest are not tainted evidence. Hammond v. State, 157 Ga. App. 647 , 278 S.E.2d 188 (1981).

Standard accusation form sufficient with affidavit for arrest. - Standard printed affidavit and accusation form, accompanied by a previously prepared affidavit for arrest, is legally sufficient. Faulkner v. State, 146 Ga. App. 604 , 247 S.E.2d 147 (1978).

Arrest affidavit on record. - Standard printed affidavit and accusation form is insufficient when no affidavit for arrest is included in the record. Faulkner v. State, 146 Ga. App. 604 , 247 S.E.2d 147 (1978).

Affidavit not specifying crime insufficient. - Accusation supported only by an affidavit charging the commission of a "misdemeanor" and not naming the specific offense is legally insufficient. Faulkner v. State, 146 Ga. App. 604 , 247 S.E.2d 147 (1978).

Probable cause is not required for issuance of arrest warrant. Davis v. State, 155 Ga. App. 511 , 271 S.E.2d 648 (1980).

Georgia law imposes no requirements for probable cause evidentiary facts in the affidavits; insofar as the Fourth Amendment to the United States Constitution imposes a requirement of probable cause, a determination as to such prerequisite may be made based upon oral testimony independent of written information contained in an affidavit. Ayers v. State, 181 Ga. App. 244 , 351 S.E.2d 692 (1986).

Affidavit for warrant sufficient although founded on belief. - Affidavit made to secure the issuance of a warrant for the arrest of an offender against the penal laws is sufficient when the affidavit is founded on knowledge or belief. Dobbs v. Anderson, 170 Ga. 826 , 154 S.E. 342 (1930).

If positive evidence, no grounds for release of prisoner. - If the affidavit is positive on its face, it is no ground for discharge of the prisoner that evidence shows that the affidavit was founded on information and belief, especially when evidence of a positive character tends to establish the guilt of the prisoner. Dobbs v. Anderson, 170 Ga. 826 , 154 S.E. 342 (1930).

Affidavit not sworn before officer authorized to administer oath is void. Thorpe v. Wray, 68 Ga. 359 (1882) ; Cox v. Perkins, 151 Ga. 632 , 107 S.E. 863 , 16 A.L.R. 918 (1921).

Subornation of perjury could be predicated upon the affidavit prescribed by this section. Herring v. State, 119 Ga. 709 , 46 S.E. 876 (1904).

General Consideration

During emergency, citizen protected by law. - Private citizen has quite as much power to arrest a fugitive felon, when the emergency calls for immediate action, as a public officer, and while so doing, is equally under the protection of the law. Johnson v. Jackson, 140 Ga. App. 252 , 230 S.E.2d 756 (1976).

Arrest to prevent felony. - Private person has the right to arrest under certain circumstances in order to prevent a felony from being committed, which felony has not yet been attempted. Johnson v. Jackson, 140 Ga. App. 252 , 230 S.E.2d 756 (1976).

Apprehension for felony must be only to bring criminal to magistrate. - When a felony has been committed, a private person acting upon a reasonable and probable ground of suspicion may apprehend a suspect without a warrant, but it is only for the purpose of taking the offender before a magistrate. The suspect may be taken and detained until the suspect can be committed to the custody of the law. Croker v. State, 114 Ga. App. 492 , 151 S.E.2d 846 (1966).

Warrantless detention by a private person amounts to a false imprisonment unless the detention comes within certain specific exceptions listed in this section. McWilliams v. Interstate Bakeries, Inc., 439 F.2d 16 (5th Cir. 1971).

To avoid liability for false imprisonment, it must be shown not only that the arrest was valid but also that the arresting officer had probable cause to believe the charged offense had been committed. Amason v. Kroger Co., 204 Ga. App. 695 , 420 S.E.2d 314 (1992).

In a false imprisonment case, the existence of probable cause standing alone is not a complete defense because, even if probable cause to believe a crime has been committed exists, a warrantless arrest would still be illegal unless the arrest was accomplished pursuant to one of the "exigent circumstances" applicable to law enforcement officers enumerated in O.C.G.A. § 17-4-20 or applicable to private persons as set forth in O.C.G.A. § 17-4-60 . Arbee v. Collins, 219 Ga. App. 63 , 463 S.E.2d 922 (1995).

Citizen's arrest not valid defense to offense of false imprisonment. - Trial evidence showed that the defendant confined the victim in the bedroom without lawful authority. In light of the defendant's testimony that the victim had not been confined at all, trial counsel was not ineffective in failing to pursue jury instructions based on an inconsistent theory that the defendant had in fact confined the victim, but was legally authorized to do so. Smith v. State, 314 Ga. App. 583 , 724 S.E.2d 885 (2012).

Citizen holding offender four days after violation. - Private citizen who forcibly detained a man on the grounds that he had indecently exposed himself to the victim four days previously, when the arrest did not occur until four days after the alleged offense, was guilty of falsely imprisoning the plaintiff. McWilliams v. Interstate Bakeries, Inc., 439 F.2d 16 (5th Cir. 1971).

Citizen cannot punish "arrested" individual. - Evidence was sufficient to support defendant's false imprisonment conviction under O.C.G.A. § 16-5-41(a) as the defendant bound the victim, hung the victim from the victim's feet, and struck the victim, allegedly to punish the victim following a citizen's arrest under O.C.G.A. § 17-4-60 for theft; the defense of justification was not so broad as to permit a private citizen to mete out judgment as that person saw fit, and the trial court properly refused to instruct the jury as to justification when there was not any evidence to support it, and when, as justification was an affirmative defense, the defendant failed to admit the crime. McPetrie v. State, 263 Ga. App. 85 , 587 S.E.2d 233 (2003).

Civil protective custody did not constitute a criminal arrest. - Custody authorized by an order to apprehend a defendant for a mental health evaluation pursuant to O.C.G.A. §§ 37-3-41(a) and 37-7-41(b) is plainly civil protective custody, not a criminal arrest, and a peace officer executing such an order does not thereby arrest the person to be examined such that a search incident to an arrest under O.C.G.A. § 17-5-1(a) is authorized; the common thread running through statutes addressing criminal arrests such as O.C.G.A. §§ 17-4-1 , 17-4-40 , and 17-4-60 is that authority to make a criminal arrest arises from a determination that there is probable cause to believe the person is an offender against the Georgia penal laws, and under Georgia's Mental Health Code, by contrast, taking a person into civil custody is not an arrest of a criminal offender based on probable cause. Lindsey v. State, 282 Ga. App. 644 , 639 S.E.2d 584 (2006).

Use of unreasonable force. - Although a private person may make a citizen's arrest under O.C.G.A. § 17-4-60 , only force that is reasonable under the circumstances may be used to restrain the individual arrested; an alleged assault of an individual with a baseball bat entailed unreasonable force and could not have been part of a legitimate citizen's arrest. Carter v. State, 269 Ga. 891 , 506 S.E.2d 124 (1998).

In defendant's trial on a charge of felony murder, defense counsel was not ineffective for failing to request an instruction on citizen's arrest under O.C.G.A. § 17-4-60 as the defendant used more force than was reasonable in making such an arrest when the defendant shot an intruder through the wall of a storage building. Patel v. State, 279 Ga. 750 , 620 S.E.2d 343 (2005).

Arrester has burden to deny tort if no warrant. - Whoever arrests a person without a warrant is guilty of a tort, unless the person can justify under one of the exceptions prescribed by law; and the burden of proof that the case lies within the exception rests upon the person making the arrest. Piedmont Hotel Co. v. Henderson, 9 Ga. App. 672 , 72 S.E. 51 (1911).

Innocent party shot by arresting party. - Private citizen, who in arresting a person, kills an innocent bystander, is guilty of a tort, unless the arresting party can justify actions under one of the exceptions prescribed by law; and the burden of proof that the case lies within the exception rests upon the person making the arrest. Piedmont Hotel Co. v. Henderson, 9 Ga. App. 672 , 72 S.E. 51 (1911).

Arrest for murder three years after its commission, see Snelling v. State, 87 Ga. 50 , 13 S.E. 154 (1891).

Warrant by private person insufficient. - Mere possession of a warrant does not authorize a private person to arrest the person named therein. Coleman v. State, 121 Ga. 594 , 49 S.E. 716 (1905).

No mandamus since citizen's arrest legal remedy. - When the petitioners seek mandamus to compel the mayor, aldermanic board, and sheriff to enforce laws regulating sale of liquor, mandamus is an improper remedy since the law provides for a citizen's arrest of the offenders or for the issuance of a warrant upon complaint by the citizen for the arrest of the violators. Mandamus will not lie if there is an adequate legal remedy. Solomon v. Brown, 218 Ga. 508 , 128 S.E.2d 735 (1962).

Citizen's or warrantless arrest for distilling liquor. - See Williams v. State, 148 Ga. 310 , 96 S.E. 385 (1918).

Difference between arrest of escaped felons and recapture of property. - See Drew v. State, 136 Ga. 658 , 71 S.E. 1108 (1911).

Sheriff without warrant may seize illegal property in public place. - Sheriff may seize unlawfully kept property without a warrant for search, seizure, or arrest of the offender when the sheriff lawfully enters a place of business open to the sheriff as well as other members of the public under an implied invitation to enter, and finds "slot machines" illegally kept by the owner or operator of such place of business. But these powers would not authorize search of private premises of the owner to find slot machines, in the absence of a warrant. Elder v. Camp, 193 Ga. 320 , 18 S.E.2d 622 (1942).

Failure of officer to disclose the officer's position places the officer in the same position as a private person when attempting an arrest. Franklin v. Amerson, 118 Ga. 860 , 45 S.E. 698 (1903).

Distinctions between arrests by private persons and officers. - See Delegal v. State, 109 Ga. 518 , 35 S.E. 105 (1900).

Citizen's arrest by officer outside officer's jurisdiction. - Defendant's admission that the defendant was driving in violation of the law was sufficient to justify an officer, then outside the officer's jurisdiction, to act as a private person and effect a citizen's arrest. Glazner v. State, 170 Ga. App. 810 , 318 S.E.2d 233 (1984), But see Zilke v. State, 2016 Ga. LEXIS 422 (Ga. 2016).

Uniformed off-duty officer. - Off-duty officer was treatable as a private citizen vested with the authority to make a citizen's arrest for a battery committed in the officer's presence. Wells v. State, 206 Ga. App. 513 , 426 S.E.2d 231 (1992).

Charge held harmless. - If the arrest was made without a warrant, and the only basis for the arrest without a warrant was that the crime was being committed in the presence of the person making the arrest, whether the defendant acted as an officer or as a private citizen was immaterial, since the officer's authority as either was the same; therefore, the charge injecting this issue in the case could not have been confusing to the jury or harmful to the defendant. Atlantic Coast Line R.R. v. Wegner, 90 Ga. App. 267 , 83 S.E.2d 58 (1954).

Grounds for suspicion of burglary question for jury. - What are reasonable and probable grounds for suspicion is for the determination of the jury as is whether the circumstantial evidence was sufficient to establish the commission of a burglary. Johnson v. Jackson, 140 Ga. App. 252 , 230 S.E.2d 756 (1976).

Unreasonable attempt to arrest with unlicensed semi-automatic weapon. - There was no evidence that the defendant, who murdered the victim with a rifle, was attempting to effect a valid citizen's arrest and, hence, the defendant was not entitled to an involuntary manslaughter charge. It was not reasonable for the defendant to attempt an arrest with a semi-automatic weapon which the defendant was not licensed to carry as deadly force in effecting an arrest is limited to self-defense or to a situation in which it is necessary to prevent a forcible felony. Hayes v. State, 261 Ga. 439 , 405 S.E.2d 660 (1991).

Cited in Taylor v. State, 44 Ga. App. 64 , 160 S.E. 667 (1931); Walker v. State, 46 Ga. App. 824 , 169 S.E. 315 (1933); Conoly v. Imperial Tobacco Co., 63 Ga. App. 880 , 12 S.E.2d 398 (1940); Mullis v. State, 196 Ga. 569 , 27 S.E.2d 91 (1943); Goodwin v. Allen, 89 Ga. App. 187 , 78 S.E.2d 804 (1953); Raif v. State, 219 Ga. 649 , 135 S.E.2d 375 (1964); O'Neal v. United States, 411 F.2d 131 (5th Cir. 1969); Traylor v. State, 127 Ga. App. 409 , 193 S.E.2d 876 (1972); Luke v. State, 131 Ga. App. 799 , 207 S.E.2d 213 (1974); Tomblin v. S.S. Kresge Co., 132 Ga. App. 212 , 207 S.E.2d 693 (1974); Cash v. State, 136 Ga. App. 149 , 221 S.E.2d 63 (1975); Diamond v. Marland, 395 F. Supp. 432 (S.D. Ga. 1975); Nunnally v. Revco Disct. Drug Ctrs. of Ga., Inc., 170 Ga. App. 320 , 316 S.E.2d 608 (1984); De La Gonzalez v. Krystal Co., 173 Ga. App. 574 , 327 S.E.2d 546 (1985); City of Marietta v. Kelly, 175 Ga. App. 416 , 334 S.E.2d 6 (1985); Thompson v. State, 175 Ga. App. 645 , 334 S.E.2d 312 (1985); Winn-Dixie Stores, Inc. v. Nichols, 205 Ga. App. 308 , 422 S.E.2d 209 (1992); Adams v. Carlisle, 278 Ga. App. 777 , 630 S.E.2d 529 (2006); Ferrell v. Mikula, 295 Ga. App. 326 , 672 S.E.2d 7 (2008).

Offense Committed in Presence or Within Knowledge

Citizen's duty to arrest during or after crime. - It is not only the right but the duty of a private citizen when a felony is committed to apprehend the felon; and, after a felony is committed, any private person may arrest the felon upon reasonable and probable ground of suspicion of a felon's guilt. Johnson v. Jackson, 140 Ga. App. 252 , 230 S.E.2d 756 (1976).

Admission of offense by defendant. - Offense is within the presence of the arresting party when, although the arresting party cannot be cognizant of the offense by means of the arresting party's senses, the defendant actually admits that the offense is in fact being so committed. Moore v. State, 128 Ga. App. 20 , 195 S.E.2d 275 (1973).

Admission of an offense by an accused to the arresting party is tantamount to the commission of the offense in the presence of the party making the arrest. Young v. State, 238 Ga. 548 , 233 S.E.2d 750 (1977).

"Presence" and "knowledge" synonymous. - Words "in his presence" in former Code 1933, § 27-207 (see O.C.G.A. § 17-4-20 ) and "within his immediate knowledge" as used in the former provisions (see O.C.G.A. § 17-4-60 ) were synonymous. Piedmont Hotel Co. v. Henderson, 9 Ga. App. 672 , 72 S.E. 51 (1911); Novak v. State, 130 Ga. App. 780 , 204 S.E.2d 491 (1974); Forehand v. State, 130 Ga. App. 801 , 204 S.E.2d 516 (1974).

Crime known by senses is within knowledge. - Phrases "in his presence" and "within his immediate knowledge" are synonymous and a crime is committed in one's presence if by the exercise of any of the person's senses the person has knowledge of the crime's commission. Johnson v. Jackson, 140 Ga. App. 252 , 230 S.E.2d 756 (1976).

Presence or knowledge determine arrest legality. - Whether an arrest by a private citizen is lawful depends on whether the offense was committed in the person's presence or within the person's immediate knowledge. Walker v. State, 144 Ga. App. 838 , 242 S.E.2d 753 (1978).

Arrest must immediately follow misdemeanor in presence. - Private person may make an arrest for a misdemeanor offense only when that offense occurs in the person's presence and, moreover, the arrest must occur immediately after the perpetration of the offense. McWilliams v. Interstate Bakeries, Inc., 439 F.2d 16 (5th Cir. 1971); Williams v. State, 171 Ga. App. 807 , 321 S.E.2d 386 (1984), cert. denied, 469 U.S. 1191, 105 S. Ct. 966 , 83 L. Ed. 2 d 970 (1985).

No citizen's arrest for city ordinance violation. - Since former Penal Code 1910, § 921 (see O.C.G.A. § 17-4-60 ) was a codification of preexisting law, that statute did not authorize a private person to arrest another for a violation of a municipal ordinance committed in the person's presence when the act does not constitute a felony or a misdemeanor. Graham v. State, 143 Ga. 440 , 85 S.E. 328 , 1917A Ann. Cas. 595 (1915).

Sheriff may arrest without warrant for crime committed in presence. - Like other police officers or private persons, a sheriff has the power to arrest an offender without a warrant if the offense is committed in the sheriff's presence. Elder v. Camp, 193 Ga. 320 , 18 S.E.2d 622 (1942).

Private detective may arrest. - Private detective may arrest offenders who commit crimes in the detective's presence. DuPre v. State, 153 Ga. 798 , 113 S.E. 428 (1922).

Night watchman may arrest. - A night watchman of a railroad may arrest offenders who commit crimes in the watchman's presence. Hickman v. State, 142 Ga. 630 , 83 S.E. 508 (1914).

Railroad officer may arrest. - Officer of a railroad with probable cause may arrest a person to prevent the person from stealing a ride and use reasonable means to prevent the person's escape. Summers v. Southern Ry., 118 Ga. 174 , 45 S.E. 27 (1903).

Evidence of lawful arrest. - When the defendant's shoplifting offense was committed in the presence of the food manager, and within the immediate knowledge of the store manager, both were authorized by law to arrest the defendant, and the trial court did not err in refusing to give requested jury instructions regarding the unlawful arrest by a private person and defendant's alleged right to use force to resist the attempted arrest. Merneigh v. State, 242 Ga. App. 735 , 531 S.E.2d 152 (2000).

Charge held harmless. - When the arrest was made without a warrant, and the only basis for the arrest without a warrant was that the crime was being committed in the presence of the person making the arrest, whether the defendant acted as an officer or as a private citizen was immaterial, since the person's authority as either was the same; therefore, the charge injecting this issue in the case could not have been confusing to the jury or harmful to the defendant. Atlantic C.L.R.R. v. Wegner, 90 Ga. App. 267 , 83 S.E.2d 58 (1954).

Escaped Felons

Citizen may arrest escaped felon on suspicion. - Private person may arrest an escaped felon on probable ground of suspicion without a warrant. Harper v. State, 129 Ga. 770 , 59 S.E. 792 (1907).

General Consideration

Full adversarial hearing not required. - O.C.G.A. § 17-4-62 does not require that a full adversarial hearing be held following a warrantless arrest, but merely seeks to ensure that an arrest and continuing detention of an accused is reviewed by a neutral factfinder and is satisfied when police obtain an arrest warrant within 48 hours of a valid warrantless arrest. Dean v. State, 250 Ga. 77 , 295 S.E.2d 306 (1982); Ellison v. State, 242 Ga. App. 636 , 530 S.E.2d 524 (2000).

Person who is arrested and released within the time prescribed by law on an appearance bond is not entitled to a commitment hearing. Watts v. Pitts, 253 Ga. 501 , 322 S.E.2d 252 (1984).

Delay due to defendant's request for lab analysis. - Defendant, who was arrested without a warrant, charged with, inter alia, possession of a controlled substance, and confined in the city jail, was deprived of liberty without due process after the defendant requested a lab analysis and, pursuant to the practice of the municipal court, the case was reset, delaying the determination of probable cause until over two months later. Lambert v. McFarland, 612 F. Supp. 1252 (N.D. Ga. 1984).

Justification for temporary imprisonment question for jury. - This section allowed detention for a reasonable time of a person who had been arrested. It was a question for the jury whether the exigencies of the case authorized a temporary imprisonment of the accused. King v. State, 6 Ga. App. 332 , 64 S.E. 1001 (1909).

Appeal moot. - Appeal from an arrestee's pretrial habeas corpus petition was moot because the arrestee, who argued that the arrestee had not received a commitment hearing within 48 hours of arrest under O.C.G.A. § 17-4-62 , had been indicted after filing an appeal; once an indictment had been returned against a defendant, the question of whether a commitment hearing should have been held became moot. Tidwell v. Paxton, 282 Ga. 641 , 651 S.E.2d 714 (2007).

Rights not violated. - Although the state failed to carry the state's burden of proving that the defendants knowingly and voluntarily waived the defendants' right to a first appearance hearing under O.C.G.A. § 17-4-62 , the defendants were not entitled to immediate release on the defendants' own recognizance, regardless of whether the defendants had first appearance and bail hearings within the time allowed by law, because: (1) a magistrate issued arrest warrants for two of the defendants within 48 hours of their arrest, satisfying § 17-4-62 ; and (2) the state obtained valid arrest warrants for the remaining two defendants either within or outside of the 48 hours after those defendants were arrested, and the remedy for a violation was only available during the period of illegal detention, which ended when the state obtained valid arrest warrants from a neutral and detached magistrate. Capestany v. State, 289 Ga. App. 47 , 656 S.E.2d 196 (2007).

Cited in Sanders v. State, 97 Ga. App. 158 , 102 S.E.2d 635 (1958); Johnson v. Plunkett, 215 Ga. 353 , 110 S.E.2d 745 (1959); Pistor v. State, 219 Ga. 161 , 132 S.E.2d 183 (1963); McCranie v. Mullis, 221 Ga. 617 , 146 S.E.2d 723 (1966); Kulyk v. United States, 414 F.2d 139 (5th Cir. 1969); Wilson v. State, 229 Ga. 395 , 191 S.E.2d 783 (1972); Blair v. State, 230 Ga. 409 , 197 S.E.2d 362 (1973); Gill v. Decatur County, 129 Ga. App. 697 , 201 S.E.2d 21 (1973); Tomblin v. S.S. Kresge Co., 132 Ga. App. 212 , 207 S.E.2d 693 (1974); McClure v. Hopper, 234 Ga. 45 , 214 S.E.2d 503 (1975); Wheeler v. Stynchcombe, 234 Ga. 240 , 215 S.E.2d 244 (1975); State v. Houston, 234 Ga. 721 , 218 S.E.2d 13 (1975); Thompson v. State, 175 Ga. App. 645 , 334 S.E.2d 312 (1985); Cherokee County v. North Cobb Surgical Assocs., P.C., 221 Ga. App. 496 , 471 S.E.2d 561 (1996).

Improper Detention

Release under O.C.G.A. § 17-4-62 is from custody, not trial. - Requirement that one arrested without a warrant and not conveyed before an officer authorized to issue warrants within 48 hours shall be released means that such person shall be released from imprisonment or custody until a warrant is obtained - not that the person shall be released from trial after the person has been indicted for a crime. Vaughn v. State, 248 Ga. 127 , 281 S.E.2d 594 (1981); State v. Cade, 184 Ga. App. 347 , 361 S.E.2d 494 (1987).

Exclusionary rule inapplicable. - Court declined to extend the exclusionary rule as a sanction to enforce O.C.G.A. § 17-4-62 . Battle v. State, 254 Ga. 666 , 333 S.E.2d 599 (1985).

Sanction for violating O.C.G.A. § 17-4-62 is that the defendant shall be released and does not require suppression of evidence gathered in the interim. Chisholm v. State, 231 Ga. App. 835 , 500 S.E.2d 14 (1998).

Section cannot justify illegal warrantless arrest. - This section presupposed a legal arrest without a warrant and cannot be used as a basis for legitimatizing an otherwise illegal arrest. Raif v. State, 109 Ga. App. 354 , 136 S.E.2d 169 (1964).

Escaped convict cannot be unreasonably detained. Harris v. City of Atlanta, 62 Ga. 290 (1879).

Unreasonable detention makes entire transaction trespass. - Imprisonment or detention beyond the reasonable time not only renders the imprisonment or detention illegal, but makes the entire transaction, including the arrest, a trespass ab initio. Potter v. Swindle, 77 Ga. 419 , 3 S.E. 94 (1886); Piedmont Hotel Co. v. Henderson, 9 Ga. App. 672 , 72 S.E. 51 (1911); Great Am. Indem. Co. v. Beverly, 150 F. Supp. 134 (M.D. Ga. 1956).

Reason for requiring speedy appearance before judge. - Requirement of taking arrested persons before a judicial officer without delay is in large measure prompted by the knowledge that "the seeds of coercion sprout readily in the earth of illegal detention." Blake v. State, 109 Ga. App. 636 , 137 S.E.2d 49 , cert. denied, 379 U.S. 924, 85 S. Ct. 281 , 13 L. Ed. 2 d 337 (1964).

Habeas corpus if delay over 48 hours. - This section controlled time of captivity before a hearing; habeas corpus will lie if the time before a hearing exceeded 48 hours. Hyatt v. State, 134 Ga. App. 703 , 215 S.E.2d 698 (1975).

Illegal detention does not void court's jurisdiction. - Although an arresting officer may be liable in damages for false arrest and imprisonment when the officer detains the defendant in an illegal manner, this is ordinarily immaterial so far as the jurisdiction of the court over the defendant is concerned after jurisdiction has been acquired by accusation or indictment, and appearance and pleading by the defendant, in a criminal case. French v. State, 99 Ga. App. 149 , 107 S.E.2d 890 (1959).

Illegal detention does not void arrest ab initio. - Provision of this section that a person arrested without a warrant and not conveyed before an officer authorized to issue a warrant within 48 hours "shall be released" means only that the person shall be released from imprisonment or custody until a warrant was obtained; it does not mean that an arrest legally made was rendered void ab initio. Peters v. State, 115 Ga. App. 743 , 156 S.E.2d 195 (1967).

Defendant, an arresting deputy, could not assume plaintiff arrestee would make bail as the deputy had a duty under O.C.G.A. § 17-4-62 to seek an arrest warrant within 48 hours of arrest, and since it was clearly established at the time that a ten day detention without probable cause violated the Fourth Amendment, the deputy had no qualified immunity on the arrestee's Fourth Amendment claim. Young v. Graham, F. Supp. 2d (S.D. Ga. Aug. 11, 2005).

Breath test not rendered inadmissible. - This section does not automatically void the legality of the arrest itself in such manner as to render inadmissible the result of a "breathalyzer" test because the test was not a product of a "legal arrest." Hyatt v. State, 134 Ga. App. 703 , 215 S.E.2d 698 (1975).

Voluntary confession not rendered inadmissible. - Fact that a person is arrested without a warrant and is not conveyed before an officer authorized to issue a warrant within a reasonable time allowed for the purpose, as required by this section, does not of itself render the person's confession, voluntarily given during the person's unlawful detention, inadmissible in evidence. Blake v. State, 109 Ga. App. 636 , 137 S.E.2d 49 , cert. denied, 379 U.S. 924, 85 S. Ct. 281 , 13 L. Ed. 2 d 337 (1964); Dollar v. State, 161 Ga. App. 428 , 288 S.E.2d 689 (1982).

Fact that O.C.G.A. § 17-4-62 is not complied with does not of itself render an otherwise voluntary confession inadmissible. McCorquodale v. Balkcom, 525 F. Supp. 408 (N.D. Ga. 1981), aff'd, 721 F.2d 1493 (11th Cir. 1983), cert. denied, 466 U.S. 954, 104 S. Ct. 2161 , 80 L. Ed. 2 d 546 (1984).

Confession admissibility state question. - Admissibility of a voluntary confession obtained during an unlawful detention in a state judicial proceeding remains a matter for state determination. Blake v. State, 109 Ga. App. 636 , 137 S.E.2d 49 , cert. denied, 379 U.S. 924, 85 S. Ct. 281 , 13 L. Ed. 2 d 337 (1964).

Statements at scene admissible even though made without attorney. - Investigation by police officers at the scene on the officers' arrival, and the defendant's statements to the police, not being tainted by the overtones of coercion incident to prolonged illegal detention, are not objectionable although the defendant may not at that time have had counsel. Dukes v. State, 109 Ga. App. 825 , 137 S.E.2d 532 (1964).

Delay in warrant does not require release after indictment. - Provision of this section that a person arrested without a warrant and not conveyed before an officer authorized to issue warrants within 48 hours "shall be released," means that such person shall be released from imprisonment or custody until a warrant is obtained; not that the person shall be released from trial after the person has been indicted for a crime. Blake v. State, 109 Ga. App. 636 , 137 S.E.2d 49 , cert. denied, 379 U.S. 924, 85 S. Ct. 281 , 13 L. Ed. 2 d 337 (1964).

Conviction not void after delay. - This section did not require that a prisoner be released after the prisoner had been indicted or after the prisoner has been convicted, despite delaying longer than 48 hours in bringing the accused before an officer for the issuance of a warrant. Donlavey v. Smith, 426 F.2d 800 (5th Cir. 1970).

Failure to hold a commitment hearing within 48 hours as required by this section did not render a conviction invalid nor require the exclusion of evidence. Sanders v. State, 235 Ga. 425 , 219 S.E.2d 768 (1975), cert. denied, 425 U.S. 976, 96 S. Ct. 2177 , 48 L. Ed. 2 d 800 (1976); Dollar v. State, 161 Ga. App. 428 , 288 S.E.2d 689 (1982); Chiasson v. State, 250 Ga. App. 63 , 549 S.E.2d 503 (2001).

Effect on verdict. - While the law requires a hearing within 48 hours, nevertheless, a detention or imprisonment beyond a reasonable time does not render the verdict of a jury after indictment illegal or void. Furman v. State, 225 Ga. 253 , 167 S.E.2d 628 (1969), rev'd on other grounds, 408 U.S. 238, 92 S. Ct. 2726 , 33 L. Ed. 2 d 346, vacated in part on other grounds, 229 Ga. 731 , 194 S.E.2d 410 (1972).

Reasonableness of time is question of fact. - This section commented that application for a warrant be made without delay, and makes illegal any imprisonment beyond a reasonable time necessary to obtain a warrant. Whether imprisonment was protracted for an unreasonable time under that section was a question of fact. Blake v. State, 109 Ga. App. 636 , 137 S.E.2d 49 , cert. denied, 379 U.S. 924, 85 S. Ct. 281 , 13 L. Ed. 2 d 337 (1964).

Time may be unreasonable although under 48 hours. - What is a reasonable time is a question of fact and it may well be less than 48 hours, the statutory outer limit of reasonableness. Dukes v. State, 109 Ga. App. 825 , 137 S.E.2d 532 (1964).

Detention overnight is not illegal. Johnson v. Mayor of Americus, 46 Ga. 80 (1872).

Delivery

Delivery to a police officer is insufficient. Ocean S.S. Co. v. Williams, 69 Ga. 251 (1882).

Fugitive from another state must be carried to an officer who can issue a warrant. Lavina v. State, 63 Ga. 513 (1879).

Person arrested on authority of sheriff of another county should be delivered to that sheriff. Manning v. Mitchell, 73 Ga. 660 (1884).

General Consideration

Purpose of search and seizure laws is to safeguard the privacy and security of individuals against arbitrary invasion by governmental officials. Thacker v. State, 226 Ga. 170 , 173 S.E.2d 186 (1970), vacated on other grounds, 408 U.S. 936, 92 S. Ct. 2861 , 33 L. Ed. 2 d 753, vacated in part on other grounds, 229 Ga. 731 , 194 S.E.2d 410 (1972).

Search incident to arrest. - Officers were authorized under O.C.G.A. § 17-5-1 to search the vehicle incident to the defendant's arrest, and the fact that the officers might have expected to find contraband did not lessen the officers' authority to search. Polke v. State, 241 Ga. App. 891 , 528 S.E.2d 537 (2000).

Reasonable basis for search. - Without any evidence that an officer had a reasonable basis for concluding that defendant was armed, or posed a threat to the officer's safety, a pat-down search is not authorized and violated the defendant's Fourth Amendment rights. Edgell v. State, 253 Ga. App. 775 , 560 S.E.2d 532 (2002).

Trial court did not err in denying the defendant's motion to suppress evidence of contraband as the defendant's nervous behavior and the fact that the police officer's experience allowed the officer to conclude that where drugs were involved, as was true in the defendant's case, weapons were usually found, made the officer's patdown search of the defendant for weapons permissible and the resulting methamphetamine that was found in defendant's pocket was properly seized since the officer knew exactly what it was when the officer touched it while patting down the defendant. Holmes v. State, 267 Ga. App. 651 , 601 S.E.2d 134 (2004).

No not guilty verdict on basis of illegal arrest. - Defendant in a criminal case cannot claim a verdict declaring the defendant to be not guilty on the ground that the defendant was illegally arrested. Morton v. State, 132 Ga. App. 329 , 208 S.E.2d 134 (1974).

Standing to contest search. - Defendant has no standing to complain of warrantless search of a stolen automobile. Montgomery v. State, 159 Ga. App. 446 , 283 S.E.2d 663 (1981).

Rule governing vehicle searches. - For purposes of searching a vehicle contemporaneously with the lawful arrest of an individual, the state rule is the same as the federal rule. Such a search, legal under federal law, is legal under state law. Daniel v. State, 199 Ga. App. 180 , 404 S.E.2d 466 (1991).

"Plain-feel" doctrine only applies when item is immediately apparent as contraband. - Motion to suppress was properly granted when during a Terry pat-down an officer felt a lump in the defendant's coin pocket but during the officer's testimony the officer did not articulate any distinguishing characteristics that would reasonably lead the officer to believe that the object was contraband rather than a legal substance. State v. Henderson, 263 Ga. App. 880 , 589 S.E.2d 647 (2003).

Cited in Wood v. State, 224 Ga. 121 , 160 S.E.2d 368 (1968); Carter v. Gautier, 305 F. Supp. 1098 (M.D. Ga. 1969); Davidson v. State, 125 Ga. App. 502 , 188 S.E.2d 124 (1972); Holtzendorf v. State, 125 Ga. App. 747 , 188 S.E.2d 879 (1972); Harris v. State, 128 Ga. App. 22 , 195 S.E.2d 262 (1973); Rockholt v. State, 129 Ga. App. 99 , 198 S.E.2d 885 (1973); Brewer v. State, 129 Ga. App. 118 , 199 S.E.2d 109 (1973); Brooks v. State, 129 Ga. App. 393 , 199 S.E.2d 578 (1973); Rautenstrauch v. State, 129 Ga. App. 381 , 199 S.E.2d 613 (1973); Brice v. State, 129 Ga. App. 535 , 199 S.E.2d 895 (1973); Morrison v. State, 129 Ga. App. 558 , 200 S.E.2d 286 (1973); Jones v. State, 131 Ga. App. 699 , 206 S.E.2d 601 (1974); Jones v. State, 232 Ga. 771 , 208 S.E.2d 825 (1974); Godwin v. State, 133 Ga. App. 397 , 211 S.E.2d 7 (1974); Patterson v. State, 133 Ga. App. 742 , 212 S.E.2d 858 (1975); Pierce v. State, 134 Ga. App. 14 , 213 S.E.2d 162 (1975); Coley v. State, 135 Ga. App. 810 , 219 S.E.2d 35 (1975); Smith v. State, 138 Ga. App. 226 , 225 S.E.2d 744 (1976); State v. Mathis, 143 Ga. App. 121 , 237 S.E.2d 643 (1977); Cook v. State, 145 Ga. App. 544 , 244 S.E.2d 64 (1978); Orr v. State, 145 Ga. App. 459 , 244 S.E.2d 247 (1978); McCarty v. State, 146 Ga. App. 389 , 246 S.E.2d 416 (1978); Kiriaze v. State, 147 Ga. App. 832 , 250 S.E.2d 568 (1978); Mooney v. State, 243 Ga. 373 , 254 S.E.2d 337 (1979); Starr v. State, 159 Ga. App. 386 , 283 S.E.2d 630 (1981); Watson v. State, 159 Ga. App. 618 , 284 S.E.2d 636 (1981); Denson v. State, 159 Ga. App. 713 , 285 S.E.2d 69 (1981); Butler v. State, 159 Ga. App. 895 , 285 S.E.2d 610 (1981); Ivory v. State, 160 Ga. App. 193 , 286 S.E.2d 435 (1981); Robertson v. State, 161 Ga. App. 715 , 288 S.E.2d 362 (1982); Wesley v. State, 162 Ga. App. 737 , 293 S.E.2d 27 (1982); Overman v. State, 250 Ga. 494 , 299 S.E.2d 542 (1983); Powell v. State, 170 Ga. App. 185 , 316 S.E.2d 779 (1984); Vaughn v. State, 173 Ga. App. 716 , 327 S.E.2d 747 (1985); Minor v. State, 180 Ga. App. 869 , 350 S.E.2d 783 (1986); United States v. D'Angelo, 819 F.2d 1062 (11th Cir. 1987); Wade v. State, 184 Ga. App. 97 , 360 S.E.2d 647 (1987); Martin v. State, 185 Ga. App. 145 , 363 S.E.2d 765 (1987); Baxter v. State, 188 Ga. App. 598 , 373 S.E.2d 834 (1988); Burroughs v. State, 190 Ga. App. 467 , 379 S.E.2d 175 (1989); State v. Nelson, 261 Ga. 246 , 404 S.E.2d 112 (1991); Loden v. State, 199 Ga. App. 683 , 406 S.E.2d 103 (1991); Gebremedhin v. State, 202 Ga. App. 811 , 415 S.E.2d 529 (1992); Florence v. State, 246 Ga. App. 479 , 539 S.E.2d 901 (2000); Freeman v. State, 248 Ga. App. 363 , 548 S.E.2d 616 (2001); Bain v. State, 258 Ga. App. 440 , 574 S.E.2d 590 (2002); Banks v. State of Ga., 277 Ga. 543 , 592 S.E.2d 668 (2004); Selvy v. Morrison, 292 Ga. App. 702 , 665 S.E.2d 401 (2008).

Justification for Warrantless Search

Section permits seizure of evidence when lawful arrest effected. - O.C.G.A. § 17-5-1 permits the discovery and seizure of an instrumentality, or any item, substance, object or thing which is tangible evidence of the commission of the crime, when a lawful arrest has been effected and the search is made in the area of the person's immediate presence. Watkins v. State, 160 Ga. App. 9 , 285 S.E.2d 758 (1981).

Since the defendant's warrantless arrest after being found at the home of a friend was justified under O.C.G.A. § 17-4-20(a) in connection with the murder of another of defendant's friends and the disappearance of defendant's spouse, a search incident to the arrest pursuant to O.C.G.A. § 17-5-1(4) permitted the police to search a duffel bag that was on the floor in the bedroom where the defendant was arrested because the bag was in the defendant's "immediate presence" and could be seized and searched for items used in the commission of the crime or crimes. Wright v. State, 276 Ga. 454 , 579 S.E.2d 214 (2003), cert. denied, 540 U.S. 1106, 124 S. Ct. 1059 , 157 L. Ed. 2 d 892 (2004).

Because the police were authorized to seize marijuana found in plain view, seen through the window of an apartment where the police were executing an arrest warrant on another individual, once the defendant answered a knock on the apartment door, police also had the right to search incident to the defendant's arrest for possession of marijuana and based on the exigency of the circumstances; hence, the trial court erred in granting a motion to suppress the marijuana without explaining the court's interpretation of the evidence or ruling on the credibility of the witnesses. State v. Venzen, 286 Ga. App. 597 , 649 S.E.2d 851 (2007).

Because an officer had probable cause to arrest the defendant at the scene of an accident for driving without the defendant's driver's license in the defendant's immediate possession, O.C.G.A. § 40-5-29 , the officer's search of the defendant's person as the officer placed the defendant in handcuffs and in the squad car was a valid search incident to an arrest pursuant to O.C.G.A. § 17-5-1 ; gun evidence seized from the car was admissible because the car was impounded due to being undriveable from the accident. State v. McCloud, 344 Ga. App. 595 , 810 S.E.2d 668 (2018).

Section permits seizure of evidence from vehicle compartment when lawful arrest. - When a defendant was pulled over for playing the car radio too loudly in violation of city noise ordinances and the officer noted that the windshield was cracked, and after the officer confirmed by radio that the defendant's license had been suspended, there was probable cause for arrest; because of the lawful arrest and the necessity to impound the defendant's vehicle due to the vehicle's unsafe condition, the officer was authorized to search the passenger compartment. Thus, the trial court properly refused to suppress evidence of contraband on the basis that the evidence stemmed from a pretextual stop unsupported by articulable suspicion or probable cause. Freeman v. State, 195 Ga. App. 357 , 393 S.E.2d 496 (1990).

Defendant had standing to raise a challenge to a search of a vehicle in which the defendant was riding as a passenger because the defendant could challenge the prolonged detention and the subsequent vehicle search. However, the taint of the illegal detention was thereafter purged by the intervening arrest of the defendant on outstanding warrants, which then justified the officer's lawful search incident to an arrest and, accordingly, marijuana found in the passenger compartment of the car was not subject to suppression under the principles established by U.S. Const., amend. IV, Ga. Const. Art. I, Sec. I, Para. XIII, or the Georgia Code. State v. Cooper, 260 Ga. App. 333 , 579 S.E.2d 754 (2003).

As the defendant was lawfully arrested for traffic violations, the search of the vehicle's passenger compartment incident to that arrest was valid under O.C.G.A. § 17-5-1 , the Fourth Amendment, and the Georgia Constitution. Garcia v. State, 293 Ga. App. 422 , 667 S.E.2d 205 (2008).

Property taken from defendant at sheriff's office. - There was no error in the warrantless search of the shoes taken from the defendant at the sheriff 's office and later introduced into evidence. Property which the arrestee elected to take with the arrestee to jail was subject to search under an analysis similar to that allowing search incident to an arrest. Batton v. State, 260 Ga. 127 , 391 S.E.2d 914 (1990).

Elements needed to show informer gives probable cause for search. - To establish probable cause (whether for the issuance of a warrant by a magistrate or, under exigent circumstances, for a search without a warrant) three elements are essential: that there is reason to accept an informer's reliability; that the facts are sufficient to show how the informer obtained the information or that the criminal activity is described in such detail as to negate its being a mere rumor; and, that the information is current, not stale. State v. Watts, 154 Ga. App. 789 , 270 S.E.2d 52 (1980).

Informer's past reliability versus veracity of current information. - One may act on the information of an informer as to whom the magic phrase "has given reliable information in the past" cannot be applied. An averment of previous reliability is not essential; the question is whether the informant's present information is truthful and reliable. Meneghan v. State, 132 Ga. App. 380 , 208 S.E.2d 150 (1974).

Information can come from informer through other police. - Factual information relayed by police to other law enforcement officers is not per se subject to a "double hearsay" objection, the question being whether probable cause is shown. Meneghan v. State, 132 Ga. App. 380 , 208 S.E.2d 150 (1974).

Probable cause does not justify invasion of house without proving emergency. - Probable cause, however well founded, can provide no justification for a warrantless intrusion of a person's home absent a showing "that the exigencies of the situation" made that course imperative. Clare v. State, 135 Ga. App. 281 , 217 S.E.2d 638 (1975).

When the circumstances are insufficient to warrant an arrest. - Under former Code 1933, § 326-2614 (see O.C.G.A. § 16-11-44 ), Ga. L. 1966, p. 567, § 1 (see O.C.G.A. § 17-5-1 ) did not offer a basis for the officer's warrantless intrusion of the defendant's apartment. Clare v. State, 135 Ga. App. 281 , 217 S.E.2d 638 (1975).

Civil protective custody is not a criminal arrest. - Drug evidence found in a defendant's pocket by a police officer who was executing a civil order to apprehend the defendant for a mental health evaluation under O.C.G.A. §§ 37-3-41(a) and 37-7-41(b) should have been suppressed because such an order authorized civil protective custody, not a criminal arrest pursuant to O.C.G.A. § 17-5-1 ; because no criminal arrest had taken place based on probable cause, the defendant had not been arrested such that a search incident to an arrest was authorized. Lindsey v. State, 282 Ga. App. 644 , 639 S.E.2d 584 (2006).

Reasonable nature of seizure varies with case. - Whether a search and seizure is unreasonable within the meaning of U.S. Const., amend. 4 depends upon the facts and circumstances of each case. Martasin v. State, 155 Ga. App. 396 , 271 S.E.2d 2 (1980) (opinion of Smith, J., concurring specially).

Reasonable nature of seizure is not determined by ease in getting search warrant. - Practicability of procuring a search warrant is not a sine qua non to the reasonableness of a search. Some flexibility will be accorded law officers. Thomas v. State, 118 Ga. App. 359 , 163 S.E.2d 850 (1968), cert. denied, 394 U.S. 943, 89 S. Ct. 1273 , 22 L. Ed. 2 d 477 (1969).

Search can be made with consent as well as lawful arrest. - Legal search may be made incident to a lawful arrest or by consent of the owner of the premises or property. Abrams v. State, 223 Ga. 216 , 154 S.E.2d 443 (1967).

Prevention of destruction of contraband. - Trial court's finding that an officer's right to search defendant upon arresting the defendant encompassed the right to ask the defendant to empty the defendant's mouth of its contents; furthermore, because the arrest was lawful, the officer was authorized to discover or seize any item that was unlawful to possess, and, even though the officer did not know exactly what was in the defendant's mouth, the officer's suspicion that it may have been an unlawful item was reasonable under the circumstances. Sanders v. State, 247 Ga. App. 170 , 543 S.E.2d 452 (2000).

Bloody clothing freely given is admissible evidence. - Bloody sweater and shoes of a defendant who is charged with robbery by intimidation, when voluntarily given to the officer, are admissible and the defendant cannot complain of being compelled to testify against oneself. Moton v. State, 225 Ga. 401 , 169 S.E.2d 320 (1969).

Consent after momentary stop with reasonable suspicion not consent after illegal arrest. - When the momentary detention of the defendant's car was "an intrusion short of arrest" and when the officer had "specific and articulable facts" to provoke a "reasonable and founded suspicion," assertions that the consent to search was not valid because consent was given after an illegal arrest were without merit. Huffman v. State, 149 Ga. App. 464 , 254 S.E.2d 489 , cert. denied, 444 U.S. 918, 100 S. Ct. 236 , 62 L. Ed. 2 d 174 (1979).

Head of household gives effective consent. - Voluntary consent of the head of a household to the search of premises owned or controlled by such head of the household is sufficient to authorize a search of the premises without a search warrant, and such search does not violate the constitutional prohibition against unreasonable searches and seizures. Montgomery v. State, 155 Ga. App. 423 , 270 S.E.2d 825 (1980).

Third party car owner who turns over defendant's suitcases. - If an individual, in whose car defendant's luggage is placed prior to the defendant's arrest, is torn between two unattractive alternatives - keeping the unwanted luggage or turning the luggage over - and finally decides to take a police receipt and give the luggage to the police, the individual's consent is voluntary and effective. Mooney v. State, 243 Ga. 373 , 254 S.E.2d 337 , cert. denied, 444 U.S. 886, 100 S. Ct. 179 , 62 L. Ed. 2 d 116 (1979).

When the defendant, in making no provision for the luggage, in effect abandons the luggage in an individual's automobile with no undertaking from the individual to keep the luggage, the individual is at best a reluctant bailee, and thus the defendant's argument that the individual has no authority to dispose of the luggage, by turning the luggage over to the police, is clearly erroneous. Mooney v. State, 243 Ga. 373 , 254 S.E.2d 337 , cert. denied, 444 U.S. 886, 100 S. Ct. 179 , 62 L. Ed. 2 d 116 (1979).

Test determining whether consent to search is voluntary is the "totality of the circumstances" under Schneckloth v. Bustamonte, 412 U.S. 218, 93 S. Ct. 2041 , 36 L. Ed. 2 d 854 (1973) and United States v. Scott, 578 F.2d 1186 (6th Cir.) cert. denied, 439 U.S. 870, 99 S. Ct. 201 , 58 L. Ed. 2 d 182 (1978); Mooney v. State, 243 Ga. 373 , 254 S.E.2d 337 , cert. denied, 444 U.S. 886, 100 S. Ct. 179 , 62 L. Ed. 2 d 116 (1979).

Burden on state to show consent. - Whether or not consent to search was freely given is an issue on which the state must carry the burden of proof. Mooney v. State, 243 Ga. 373 , 254 S.E.2d 337 , cert. denied, 444 U.S. 886, 100 S. Ct. 179 , 62 L. Ed. 2 d 116 (1979).

Search for weapons or contraband incident to arrest. - Once defendant has been placed under custodial arrest, police may search the defendant's person, incident to that arrest, for weapons or contraband. Paxton v. State, 160 Ga. App. 19 , 285 S.E.2d 741 (1981).

Transcript showed that deputies were conducting a legitimate Terry search of the defendant's jacket for weapons when the cocaine was discovered; therefore, seizure of the cocaine was incident to a lawful arrest. Montoya v. State, 232 Ga. App. 24 , 499 S.E.2d 699 (1998).

Because the defendant was handcuffed to ensure the officers' safety after a pistol-like device was found and the handcuffs were removed before the agent spoke with the defendant, the defendant's statement to the agent that the defendant used drugs that evening gave the agent probable cause for the defendant's arrest; the defendant was then searched incident to a lawful arrest. Bond v. State, 271 Ga. App. 849 , 610 S.E.2d 609 (2005).

Immediate search of area for weapons. - Officer is entitled to make a reasonable search of the immediate area for weapons. Mobley v. State, 130 Ga. App. 80 , 202 S.E.2d 465 (1973), overruled on other grounds, Patterson v. State, 238 Ga. 204 , 232 S.E.2d 233 (1977).

Search including area where defendant might reach. - It is reasonable for an officer to search an area surrounding the arrest area into which a suspect might reach to obtain a weapon. Banks v. State, 246 Ga. 178 , 269 S.E.2d 450 (1980).

In exigent circumstances, police officers are authorized, pursuant to a lawful arrest, to enter upon the premises and conduct a reasonable search of the suspects' persons and immediate presence, including a search under a piece of furniture where one of the suspects was observed reaching for or disposing of an unknown object, which might reasonably be thought to be either a weapon or evidence. Dennis v. State, 166 Ga. App. 715 , 305 S.E.2d 443 (1983).

Weapons within lunging area properly seized. - Trial court properly denies a motion to suppress evidence of weapons found in a box within the arrestee's "lunging area" when the law enforcement officer knew that the arrestee was armed. Smallwood v. State, 166 Ga. App. 247 , 304 S.E.2d 95 (1983).

Officer may remove weapons. - It is reasonable that when a lawful arrest is made the arresting officer may remove any weapons that the suspect might seek to use to try to resist arrest or to escape. Banks v. State, 246 Ga. 178 , 269 S.E.2d 450 (1980).

If limited "pat down" sufficient, only limited "stop and frisk" allowed. - If a search of a person is conducted pursuant to this section and a limited "pat down" of the person's outer clothing would be sufficient to satisfy the police officer's suspicion that a weapon was being concealed, only a limited "stop and frisk" search is permitted. Merritt v. State, 133 Ga. App. 956 , 213 S.E.2d 84 (1975).

Limitations on search incident to arrest. - Except under exigent and unusual circumstances, a search incident to arrest can be held reasonable only for the purposes of preventing the defendant from accessing a weapon or evidence which the defendant may destroy, and this usually limits the search to the defendant's person and clothing, and that very narrow area surrounding the defendant where the defendant might reach even though under restraint. Scott v. State, 122 Ga. App. 204 , 176 S.E.2d 481 (1970).

Seizure of instrumentalities used to commit crime. - Instrumentalities used to commit a crime may also be seized during arrest without search warrants. Abrams v. State, 223 Ga. 216 , 154 S.E.2d 443 (1967).

Searching entire house to discover occupants and preserve evidence permitted. - Subsequent to warrantless entrance under exigent circumstances, officers were authorized to make a search of the entire house for the limited purpose of securing the house, i.e., discovering the presence of all occupants and eliminating the possibility of harm to the officers and the destruction of evidence. Lentile v. State, 136 Ga. App. 611 , 222 S.E.2d 86 (1975).

Officer was entitled to search the defendant's person and immediate presence pursuant to the defendant's valid arrest for marijuana possession, and was further entitled to a limited search of the entire house, and to seizure of cocaine that was spotted in plain view. Jenkins v. State, 223 Ga. App. 486 , 477 S.E.2d 910 (1996).

Searching trailer justified when defendant took guns and lied about location. - When a murder had just been committed by the defendant and the defendant retreated to the defendant's trailer with the gun in the defendant's hand and misstated the gun's location upon arrest, the limited immediate search conducted by an officer to find the murder weapon was reasonable and any error was harmless beyond a reasonable doubt. Moody v. State, 244 Ga. 247 , 260 S.E.2d 11 (1979).

Searching house justified if police likely noticed by defendants. - When several persons were in the house before the defendant's arrest, two persons were seen fleeing the house after the defendant's arrest, and the defendant had brought out only a third of the agreed-on sale of marijuana - giving the officers reason to believe that the officers' presence and identity had been detected, and that there was a substantial possibility that the remaining occupant or occupants would attempt to escape or destroy evidence, set up resistance to an eventual entry or plan a desperate flight, a warrantless search was justified. Lentile v. State, 136 Ga. App. 611 , 222 S.E.2d 86 (1975).

Evidence of consent sufficient to authorize search of vehicle. - When the state presents evidence of defendant's free and voluntary consent to search the trunk of the defendant's vehicle and of the subsequent creation of probable cause as to the suitcase by defendant's statement to the officers that the suitcase contained marijuana, along with the exigent circumstances arising from the mobility of the automobile, these were circumstances which authorized a warrantless search of the vehicle. Smith v. State, 160 Ga. App. 690 , 287 S.E.2d 44 (1981).

With regard to a defendant's convictions for possession of methamphetamine with intent to distribute, possession of a firearm during the commission of a drug offense, and carrying a concealed weapon, the trial court properly denied the defendant's motion to suppress the items seized from the defendant's vehicle and the defendant's person after a traffic stop as the defendant's failure to wear a seatbelt and to have insurance on the vehicle justified the traffic stop. Thereafter, after being released from the traffic stop and being asked to come back, the defendant consented to the search of the vehicle and of the defendant's person, which led to the seizure of the contraband. Hughes v. State, 293 Ga. App. 404 , 667 S.E.2d 163 (2008).

Consensual search following lawful warrantless arrest valid. - When the warrantless arrest was legal, the search of the accused's car 30 minutes later with the accused's consent, as an incident to a lawful arrest, was proper. Knighton v. State, 166 Ga. App. 390 , 304 S.E.2d 512 (1983).

Search of automobile incident to arrest. - Once passenger was placed under arrest, officer could lawfully search the entire passenger compartment of the defendant's vehicle as a search incident to arrest. Tutu v. State, 252 Ga. App. 12 , 555 S.E.2d 241 (2001).

Police officers lawfully arrested the defendant after the officers saw the defendant's companion drive at a high rate of speed and hit a stop sign; furthermore, the officers were allowed to search the car that the defendant's companion was driving after the defendant was arrested, and the trial court erred by suppressing items associated with the use and manufacture of methamphetamine which police found when police searched the car. State v. Lowe, 263 Ga. App. 1 , 587 S.E.2d 169 (2003).

Search of the defendant's vehicle incident to the defendant's arrest for driving with a suspended license was not illegal under O.C.G.A. § 17-5-1 ; there was no claim that the defendant was unlawfully arrested, and no violation of a deputy's authority to search incident to the defendant's arrest. Hurley v. State, 287 Ga. App. 482 , 651 S.E.2d 748 (2007), cert. denied, 2008 Ga. LEXIS 175 (Ga. 2008).

Trial court did not err in denying the defendant's motion to suppress as the officers could lawfully search the interior of the defendant's car. A sergeant who had received a report of a speeding car had a reasonable and articulable suspicion of criminal activity having occurred, and after the defendant fled and disobeyed an order to stop, a second officer had probable cause to arrest the defendant for obstruction following which the car interior could be lawfully searched under O.C.G.A. § 17-5-1 . Spence v. State, 295 Ga. App. 583 , 672 S.E.2d 538 (2009).

Seizure of automobile as instrumentality of crime. - When police officers had probable cause to seize an automobile as an instrumentality of crime, a search was made of the automobile contemporaneously with the automobile's seizure, the police had no way of determining who might have access to the vehicle and could remove and destroy the evidence, and the evidence contained in the automobile was in plain view, there was no error in allowing the results of the warrantless search into evidence since the search was reasonable. Collins v. State, 171 Ga. App. 906 , 321 S.E.2d 757 (1984).

Officer may search automobile to find and protect evidence. - Officer at the time of a lawful custodial arrest may, without a warrant, make a full search of the accused, a limited area within the control of the person arrested, and of the automobile in the person's possession at the scene of the arrest for the discovery and preservation of criminal evidence. Stoker v. State, 153 Ga. App. 871 , 267 S.E.2d 295 (1980).

If probable cause justifies a search of a lawfully stopped vehicle, it justifies the search of every part of the vehicle and the vehicle's contents that may conceal the object of the search; contraband lawfully discovered and seized from the passenger area of a vehicle furnishes probable cause for believing that more contraband is contained in the vehicle. Medlin v. State, 168 Ga. App. 551 , 309 S.E.2d 639 (1983); Watson v. State, 190 Ga. App. 696 , 379 S.E.2d 817 (1989), overruled on other grounds, Berry v. State, 248 Ga. App. 874 , 547 S.E.2d 664 (2001), overruled on other grounds, Bius v. State, 254 Ga. App. 634 , 563 S.E.2d 527 (2002).

Warrantless search of an automobile glove compartment was justified for the purpose of attempting to find a robbery weapon which was not found on the defendant's person at the time of arrest since the defendant was in the vehicle when the defendant was arrested for armed robbery. Cain v. State, 178 Ga. App. 247 , 342 S.E.2d 742 (1986).

When a driver was lawfully arrested for operating a car without a license and for not having proof of insurance, a police officer did not exceed the permissible scope of a search incident to arrest when the officer searched the car. Vega v. State, 236 Ga. App. 319 , 512 S.E.2d 65 (1999).

Evidence insufficient for arrest and evidence seized required suppression. - Because the circumstances of the defendant's low-speed flight from an uniformed detective, who was driving an unmarked vehicle, were insufficient to present law enforcement with evidence of a particular crime, the defendant could not be charged with the crime of attempting to elude an officer, and the police lacked probable cause sufficient to warrant an arrest for the offense; thus, the search incident to the arrest was invalid, warranting suppression of the evidence seized. Stephens v. State, 278 Ga. App. 694 , 629 S.E.2d 565 (2006).

Search of automobile for proof of intoxication. - Search of a vehicle is proper for the purpose of obtaining evidence of the basis of a suspect's intoxication. Stoker v. State, 153 Ga. App. 871 , 267 S.E.2d 295 (1980); State v. Holden, 162 Ga. App. 33 , 290 S.E.2d 130 (1982); State v. Elliott, 205 Ga. App. 345 , 422 S.E.2d 58 (1992).

If a person is lawfully arrested for driving under the influence of any substance, the officer may conduct a warrantless search of the passenger compartment of the vehicle for the purpose of obtaining evidence of intoxication as an incident to that lawful arrest. Knox v. State, 216 Ga. App. 90 , 453 S.E.2d 120 (1995).

Abandoned vehicle was searchable. - Although after committing a traffic violation the defendant attempted to evade arrest so that the defendant's vehicle was no longer in the defendant's immediate presence when the defendant was arrested, that fact did not deprive the officer of authority to search the vehicle. State v. Nichols, 225 Ga. App. 609 , 484 S.E.2d 507 (1997).

Police have probable cause to believe that car contains contraband. - Automobile in which contraband goods are concealed and transported may be searched without a warrant provided the police have probable cause for believing that the automobile contains the contraband. Still v. State, 149 Ga. App. 792 , 256 S.E.2d 133 (1979).

Rationale for search of automobile without warrant. - Automobile in which contraband goods are concealed and transported may be searched without a warrant provided the police have probable cause for believing that the automobile which the police search contains the contraband. The reason for this rule is obvious. An automobile, unlike a home or place of business, is mobile and can be quickly moved out of the locality or jurisdiction; therefore, a search without a warrant is allowed when it is impractical to obtain a warrant. Meneghan v. State, 132 Ga. App. 380 , 208 S.E.2d 150 (1974).

Search of automobile and closed container therein. - Broad scope of authority granted to police officers in conducting searches of automobiles pursuant to the search incident to arrest exception extends to the entire passenger compartment of the automobile and any closed containers therein. Bagwell v. State, 214 Ga. App. 15 , 446 S.E.2d 739 (1994).

Probable cause needed to search and seize moving vehicle. - One of the exigent circumstances justifying a warrantless search is a situation where there is a seizure and search of a moving vehicle, and when the vehicle is indeed moving there is only the requirement that the search and seizure be based upon sufficient probable cause. State v. Watts, 154 Ga. App. 789 , 270 S.E.2d 52 (1980).

Police may search car later at station house. - Police officers with probable cause to search an automobile on the scene where it was stopped may constitutionally do so later at the station house without first obtaining a warrant. Shaw v. State, 149 Ga. App. 853 , 256 S.E.2d 150 (1979).

Impoundment of car when occupants arrested. - When occupants of a car are arrested, and no one remains to take custody of the car, which has been stopped in a traffic lane, the police are authorized to impound the car, and a resultant inventory is proper. Hansen v. State, 168 Ga. App. 304 , 308 S.E.2d 643 (1983).

Limited stop when there is articulable suspicion. - Limited stop by police officers when there is an articulable suspicion is permissible even though no probable cause exists. Smith v. State, 160 Ga. App. 690 , 287 S.E.2d 44 (1981).

Permissible extent of momentary stop. - Investigatory stop is a brief stop, limited in time to that minimally necessary to investigate the allegation invoking suspicion, and limited in scope to identification, licensing of a driver and a vehicle if appropriate, a protective "pat down" of the outer surface of clothing for weapons if the officer has reasonable apprehension that the person is armed or dangerous, and questioning reasonably related to the circumstances that justified the initiation of the momentary stop. Clinkscale v. State, 158 Ga. App. 597 , 281 S.E.2d 341 (1981).

Articulable suspicion less than probable cause. - Articulable suspicion is less than probable cause to make an arrest or conduct a search, but must be more than mere caprice or arbitrary harassment. Clinkscale v. State, 158 Ga. App. 597 , 281 S.E.2d 341 (1981).

Specific and articulable suspicion found. - When, based on the information received from an informant, as well as the officer's own observations, the officer had specific and articulable facts which reasonably warranted a stop of the defendant's vehicle, because the defendant had been identified as a possible suspect in the distribution of illegal drugs, there was sufficient articulable suspicion for the officer to temporarily detain and question the defendant and, after the defendant's arrest, to search the defendant for weapons and contraband. Johnson v. State, 246 Ga. App. 197 , 540 S.E.2d 212 (2000).

Search without warrant or seizure before seeing magistrate both justified with probable cause. - For constitutional purposes, there is no difference between on the one hand seizing and holding a car before presenting the probable cause issue to a magistrate and on the other hand carrying out an immediate search without a warrant; given probable cause to search, either course is reasonable under U.S. Const., amend. 4. State v. Watts, 154 Ga. App. 789 , 270 S.E.2d 52 (1980).

Warrantless arrest for fleeing. - Flight accompanied by other suspicious circumstances will sometimes authorize a warrantless arrest even though the officers do not at the time know that the particular crime for which the arrestee is brought to trial has been committed. Morton v. State, 132 Ga. App. 329 , 208 S.E.2d 134 (1974).

Search based on outstanding arrest warrant. - Marijuana found in a search of the defendant incident to the defendant's arrest was admissible under O.C.G.A. § 17-5-30 because a police dispatcher's statement to an officer that there was an outstanding arrest warrant for the defendant provided the probable cause necessary to arrest the defendant and, as a consequence, the search incident to the arrest was lawful under O.C.G.A. § 17-5-1 . State v. Edwards, 307 Ga. App. 267 , 704 S.E.2d 816 (2010).

Searching car stopped for traffic violation without further suspicion. - If a defendant, while operating an automobile, runs a stop light upon entering a state highway, in the presence of a state police officer, who immediately arrests the defendant for that offense and searches the automobile without the consent of the defendant, and the police officer gives as the officer's only reason for searching the automobile that it was the officer's usual practice to search stopped cars, and no other reason appears from the evidence on a hearing upon a motion to suppress, such a search is unreasonable and illegal. Rowland v. State, 117 Ga. App. 577 , 161 S.E.2d 422 (1968).

Trial court did not err in denying the defendant's motion to suppress evidence that a police officer gathered incident to a traffic stop of the defendant's vehicle as the officer was justified in stopping the defendant's vehicle because the officer observed the defendant weave substantially outside the defendant's lane of travel, which was a traffic violation that permitted the officer to stop the defendant's vehicle. Spence v. State, 263 Ga. App. 377 , 587 S.E.2d 766 (2003).

Warrantless automobile search must be reasonable. - If search of an automobile is made by a police officer without a warrant, the test of the search's legality is whether the search was reasonable. Meneghan v. State, 132 Ga. App. 380 , 208 S.E.2d 150 (1974).

Violation of O.C.G.A. § 40-5-33 did not justify the defendant's continued detention by the police and the officer's decision to detain the defendant while the officer waited for another officer to bring a written warning book was unreasonable; thus, under the totality of the circumstances, the officer did not have specific, articulable facts that could constitute a particularized and objective basis for suspecting that the defendant was involved in any criminal activity thereby making the search unreasonable under the Fourth Amendment and requiring suppression of the evidence seized from the vehicle. Bennett v. State, 285 Ga. App. 796 , 648 S.E.2d 126 (2007).

Reasonableness is question for trial judge, not appellate court. - Reasonableness is not determined by the hindsight of appellate court judges after weeks of academic deliberation; it is determined by the foresight of the officer on the scene who must act in the public interest in a very short space of time. The reasonableness of the officer's action must be judged in relation to the circumstances then existing and is in the first instance a question for the trial judge to determine. Meneghan v. State, 132 Ga. App. 380 , 208 S.E.2d 150 (1974).

Incidental Seizure of Unrelated Evidence

Motive for search under section immaterial. - Whenever a search is made pursuant to Ga. L. 1966, p. 567, §§ 1 and 2 (see O.C.G.A. §§ 17-5-1 and 17-5-2 ), the motive for the search is irrelevant. Carson v. State, 241 Ga. 622 , 247 S.E.2d 68 (1978).

Right to search based on officer's reasonable belief, not right to arrest. - Right to search and the validity of the seizure are not dependent on the right to arrest. They are dependent on the reasonable cause the seizing officer has for the belief that the contents of the automobile offend the law. Meneghan v. State, 132 Ga. App. 380 , 208 S.E.2d 150 (1974).

Officer needs only probable cause to believe articles stolen. - Law does not require knowledge by the officer seizing articles subsequent to an arrest that the articles have been stolen. Probable cause to believe the articles have been stolen is sufficient. Boyd v. State, 133 Ga. App. 136 , 210 S.E.2d 251 (1974).

Items in plain view giving probable cause to believe crime occurring. - When articles are in plain view without a search and are in sufficient connection with the totality of the circumstances to constitute probable cause for the belief that a crime is being committed in the police officers' presence, the arrest is valid and the search incident thereto is reasonable. Anderson v. State, 123 Ga. App. 57 , 179 S.E.2d 286 (1970).

Plain view. - Officers are not required to ignore articles that are in plain view and readily observable and seizure of the articles under these circumstances does not make the articles the fruit of an unlawful search since, being in plain view, no search is involved. Scott v. State, 122 Ga. App. 204 , 176 S.E.2d 481 (1970).

"Plain view" doctrine will support a warrantless search and seizure if the agents are lawfully in a position to obtain the view, the discovery is inadvertent, and the object viewed is immediately seen to be incriminating. Mooney v. State, 243 Ga. 373 , 254 S.E.2d 337 , cert. denied, 444 U.S. 886, 100 S. Ct. 179 , 62 L. Ed. 2 d 116 (1979).

Trial court did not err by limiting the admissibility of admissible items in a defendant's felony murder trial to those items seized incident to the defendant's arrest in the early morning hours and in plain view during the processing of the crime scene as an approximately 15-minute video recording of the premises, which was viewed by the trial court, supported the officers' testimony that guns, shell casings, significant amounts of cash, and items appearing to be crack cocaine were all in plain view and, under the circumstances, presented probable cause as being contraband or evidence of the crime of the felony murder of an officer. Fair v. State, 284 Ga. 165 , 664 S.E.2d 227 (2008).

Trial court did not err in denying the defendant's motion to suppress the tennis shoes and jeans found in the defendant's motel room with blood on them and the results of the DNA tests showing that the victims' blood was found on them because a Georgia Bureau of Investigation agent lawfully seized the shoes and clothes under the plain view doctrine, and the agent seized the shoes and clothes during the execution of the search warrant as the agent knew at the time of the seizure, based on the agent's training and experience, that shoes and clothes worn by the suspect could be evidence of the crimes being investigated. Saffold v. State, 298 Ga. 643 , 784 S.E.2d 365 (2016).

Entry based on exception to warrant requirement. - If the initial intrusion that brings the police within plain view of an article is supported, not by a warrant, but by one of the recognized exceptions to the warrant requirement, the seizure is also legitimate. Mooney v. State, 243 Ga. 373 , 254 S.E.2d 337 , cert. denied, 444 U.S. 886, 100 S. Ct. 179 , 62 L. Ed. 2 d 116 (1979).

Warrantless search and seizure when sheriff given entry by defendant's spouse. - If evidence establishes that a warrantless arrest and seizure were unrelated as when a sheriff who seized the items in question was permitted inside defendant's home by a person identified as defendant's spouse, and the items seized were either in plain view or voluntarily given to the sheriff, the evidence does not show a seizure pursuant to an illegal warrantless arrest that should be suppressed. Dickerson v. State, 151 Ga. App. 429 , 260 S.E.2d 535 (1979).

If officer's presence is lawful, plain view doctrine applies. - If a police officer has a right to be in the position from which an object is seen lying in plain view, the object is admissible as evidence. Dennis v. State, 166 Ga. App. 715 , 305 S.E.2d 443 (1983).

There was evidence that when police officers entered the hotel room, the officers saw a pistol butt protruding from under the pillow on which the defendant was lying, clearly within arm's reach, therefore, the introduction of the pistol at trial was not suppressed, although the officers had an arrest warrant for the defendant and not a search warrant for the room. Majors v. State, 203 Ga. App. 139 , 416 S.E.2d 156 (1992).

Seizure of fruits of crime within plain view. - In a trial for murder and armed robbery, the trial court did not err in refusing to suppress items seized in the room where the defendant was arrested, which were believed to be clothing belonging to the victim, as the items were possible fruits of the crime and were within plain view of the officers at the time of the arrest. Batton v. State, 260 Ga. 127 , 391 S.E.2d 914 (1990).

Police may seize evidence not specifically in warrant. - When peace officers entered a defendant's residence with an arrest warrant and a search warrant, arrested the defendant and searched the premises, certain articles in plain view having strong evidentiary value as to the crimes charged are not subject to a motion to suppress although not specifically named in the search warrant. Scott v. State, 122 Ga. App. 204 , 176 S.E.2d 481 (1970).

Offense influences what objects incidentally seizable. - Nature of the offense for which the accused is arrested has an important bearing upon what objects may be seized as incidental to the arrest. Abrams v. State, 223 Ga. 216 , 154 S.E.2d 443 (1967); Scott v. State, 122 Ga. App. 204 , 176 S.E.2d 481 (1970).

Seizure of marijuana is valid when the defendant is arrested for driving under the influence and police officers are searching the defendant's automobile for the source of the defendant's intoxication. Howe v. State, 132 Ga. App. 840 , 209 S.E.2d 258 (1974).

Because the underlying crime that was the basis for issuance of an arrest warrant involved threatening a person in an attempt to obtain firearms, officers were justified in searching the bedroom where the defendant was arrested for weapons and any confederates or other persons who might pose a danger to the officers. Powell v. State, 245 Ga. App. 796 , 538 S.E.2d 857 (2000).

"Papers" not immune from searches. - There is nothing inherent in "papers" which immunizes the papers from searches otherwise proper under U.S. Const., amend. 4. Mooney v. State, 243 Ga. 373 , 254 S.E.2d 337 , cert. denied, 444 U.S. 886, 100 S. Ct. 179 , 62 L. Ed. 2 d 116 (1979).

Obviously sexually oriented materials not immune if no warrant. - Since the sexually oriented materials offered for sale and seized were obviously for the primary purpose of stimulation of human genital organs in violation of former Code 1933, § 26-2101 (see O.C.G.A. § 16-12-80 ) and the materials were in plain view to the officers in a lawful position to view and see the materials, no warrant was necessary to make a lawful seizure. Ball v. State, 149 Ga. App. 270 , 253 S.E.2d 886 (1979).

Shotgun in plain view following armed robbery not immune if no warrant. - When officers were advised following a robbery of the description of the robber and details of the robbery, upon finding the suspect and the suspect's car, no search warrant was necessary as the shotgun was in plain view and the alleged shotgun had been used in the robbery. Duffey v. State, 151 Ga. App. 673 , 261 S.E.2d 421 (1979).

Weapon discovered in vehicle. - Search of defendant's vehicle, after the defendant had been arrested for a traffic violation, resulting in the discovery of a .38 caliber revolver "stuffed down" between the front seat and the console, was justified as a search incident to a lawful arrest. Daniel v. State, 199 Ga. App. 180 , 404 S.E.2d 466 (1991).

Police may not open closed containers without warrant. - Once officers are entitled to go throughout the house for the limited purpose of securing the house, the officers are free to seize the marijuana in plain sight on the bed and in open suitcases. The officers are not authorized to open up closed containers or otherwise discover contraband which is not in plain view, and this is true whether the officers are conducting the warrantless search incident to the lawful arrest of the occupants or under the exigencies of the situation. Lentile v. State, 136 Ga. App. 611 , 222 S.E.2d 86 (1975).

Search of the area within arrested person's "immediate presence" did not mean that a search of the defendant's bedroom closets and dresser drawers was justified as a "search incident to arrest" when the defendant was arrested in the kitchen. Brannon v. State, 231 Ga. App. 847 , 500 S.E.2d 597 (1998).

Warrant required for search of house when all occupants detained. - After it is determined that all of the occupants of the house plus the defendant are in custody, no exigency exists which would justify a general search of the entire house. At that point, the officers could and should procure a search warrant to discover whatever contraband or other evidence may be on the premises, not in plain view. Lentile v. State, 136 Ga. App. 611 , 222 S.E.2d 86 (1975).

Items in plain view during routine inventory search of vehicle. - When a driver is arrested and removed from the driver's vehicle, and the vehicle is on a highway or other public property, and there is no third person present to whom it is or might properly be turned over, or for some other sufficient reason a decision to impound it is properly made, and when in connection with such impoundment an "inventory search" is a recognized and routine procedure, contraband which appears in plain view in the course of such inventory is properly seized, and may be introduced in evidence. Martasin v. State, 155 Ga. App. 396 , 271 S.E.2d 2 (1980).

Police may itemize the vehicle's property. - When the police take custody of any sort of container such as an automobile, it is reasonable to search the container to itemize the property to be held by the police. Garner v. State, 154 Ga. App. 839 , 269 S.E.2d 912 (1980).

Inventory search requires no warrant or probable cause. - In circumstances involving noncriminal inventory searches, when probable cause to search is irrelevant, search warrants are not required, linked as the warrant requirement textually is to the probable-cause concept. Garner v. State, 154 Ga. App. 839 , 269 S.E.2d 912 (1980).

Inventory searches have two purposes: to protect the vehicle and the property in the vehicle, and to safeguard the police or other officers from claims of lost possessions. Garner v. State, 154 Ga. App. 839 , 269 S.E.2d 912 (1980); Thompson v. State, 155 Ga. App. 101 , 270 S.E.2d 313 (1980).

Inventory not just to protect property. - Police seizure and inventory is not dependent for its validity upon the absolute necessity for the police to take charge of property to preserve the property. The police are permitted to take charge of property under broader circumstances than that. Garner v. State, 154 Ga. App. 839 , 269 S.E.2d 912 (1980).

Inventory also permissible to protect police from danger. - An inventory search serves three distinct purposes: the protection of personal property; the protection of the police against claims arising from property allegedly lost or stolen; and the protection of the police from possible danger. Gaston v. State, 155 Ga. App. 337 , 270 S.E.2d 877 (1980).

Routine searches when cars impounded permitted by U.S. Const., amend. 4. - When vehicles are impounded, police routinely follow caretaking procedures by securing and inventorying the cars' contents. These procedures have been widely sustained as reasonable under U.S. Const., amend. 4. Martasin v. State, 155 Ga. App. 396 , 271 S.E.2d 2 (1980).

Impound search of the automobile in an armed robbery trial was not illegal as it followed defendant's arrest by an undercover officer. Smith v. State, 151 Ga. App. 697 , 261 S.E.2d 439 (1979).

Inventory search rationale must inhere in decision to seize and inventory. - Unless the rationale for an inventory search inheres in the decision to seize and inventory, the impoundment itself may be unreasonable and the resulting inventory search invalid. Garner v. State, 154 Ga. App. 839 , 269 S.E.2d 912 (1980).

Seizure of marijuana legal during arrest for forgery. - When arresting officer acted with reasonable caution in believing that the appellant was involved in the forgery scheme being perpetrated on a bank, marijuana which fell from the appellant's hand was lawfully seized incident to the appellant's arrest. Denson v. State, 159 Ga. App. 713 , 285 S.E.2d 69 (1981).

Inventory search proper when defendant allows car to be driven to police station. - After the lawful initial stop and arrest of the defendant, the subsequent inventory search of the defendant's automobile, which revealed additional contraband, was proper when the defendant made no request that someone be called to retrieve the vehicle but, instead, voluntarily acquiesced to an officer's driving the automobile to the police station where the vehicle would be impounded. Kilgore v. State, 158 Ga. App. 55 , 279 S.E.2d 239 (1981).

Evidence of traffic violation justifies search. - If there was probative evidence that the defendant was driving in excess of the lawful speed limit, there was evidence from which the trial court could reasonably conclude that the police officer did not overstep the officer's bounds in stopping the defendant, arresting the defendant for a traffic violation, and conducting a protective search of the immediate vicinity of the defendant's automobile. Kilgore v. State, 158 Ga. App. 55 , 279 S.E.2d 239 (1981).

If a police officer stopped the defendant's car for having an improper tag, determined that the defendant appeared intoxicated and arrested the defendant, the search of the defendant's car was proper, and cocaine found during the search was seized lawfully. It was not error to deny the defendant's motion to suppress. Lewis v. State, 195 Ga. App. 59 , 392 S.E.2d 563 (1990).

Evidence of other crimes found in container during search for marijuana. - When officers were lawfully conducting a search for marijuana in the house when the officers found a closed container with unknown contents apparently stored or hidden in the attic, the officers had the right to open any receptacle that could reasonably hold the substance or thing being sought and to discover or seize any item, substance, object, thing, or matter, the possession of which is unlawful or which is tangible evidence of the commission of a crime in the State of Georgia. Whittington v. State, 165 Ga. App. 763 , 302 S.E.2d 617 (1983).

Admission into evidence of substances contained within boxes and envelopes found on the defendant's person during a search incident to the defendant's arrest for a violation of the Georgia Controlled Substances Act, O.C.G.A. § 16-13-1 et seq., is not error. Dasher v. State, 166 Ga. App. 237 , 304 S.E.2d 87 (1983).

Search of bag not incident to arrest. - Trial court properly suppressed evidence gathered in connection with a warrantless search of a bag owned by the defendant after the defendant's arrest at a friend's house. The search was not incident to the defendant's arrest under O.C.G.A. § 17-5-1 as the defendant was already secured in a patrol car and there was no contention that the bag was related to the outstanding warrant on which the defendant had been arrested; the consent given by the defendant's friend to the search of the friend's home did not override the privacy interest that the defendant, a visitor, had in the bag; and there was no testimony that the bag was searched as part of an inventory of the defendant's personal effects. State v. McCarthy, 288 Ga. App. 426 , 654 S.E.2d 239 (2007).

General Consideration

Jury instructions. - There was no showing the trial court erred in failing to give the defendant's written request to charge the language of O.C.G.A. § 17-5-2 regarding the defendant's right to an inventory of property seized from the defendant at the time of arrest when the defendant did not suggest how the defendant was harmed by the trial court's failure to give the defendant's written request. Ingram v. State, 211 Ga. App. 821 , 441 S.E.2d 74 (1994).

Cited in Touchstone v. State, 121 Ga. App. 602 , 174 S.E.2d 450 (1970); Gunter v. State, 182 Ga. App. 548 , 356 S.E.2d 276 (1987).

Inventory Search Rationale

This section relates only to search without a warrant. Williams v. State, 125 Ga. App. 170 , 186 S.E.2d 756 (1971).

Noncriminal inventory searches do not involve probable cause. - In circumstances involving noncriminal inventory searches, when probable cause to search is irrelevant, search warrants are not required, linked as the warrant requirement textually is to the probable cause concept. Garner v. State, 154 Ga. App. 839 , 269 S.E.2d 912 (1980).

Seizure of observable item permitted through exception to warrant requirement. - When the initial intrusion that brings the police within plain view of an article is supported, not by a warrant, but by one of the recognized exceptions to the warrant requirement, the seizure is also legitimate. Mooney v. State, 243 Ga. 373 , 254 S.E.2d 337 , cert. denied, 444 U.S. 886, 100 S. Ct. 179 , 62 L. Ed. 2 d 116 (1979).

"Plain view" doctrine will support warrantless search and seizure if the agents are lawfully in a position to obtain the view, the discovery is inadvertent, and the object viewed is immediately seen to be incriminating. Mooney v. State, 243 Ga. 373 , 254 S.E.2d 337 , cert. denied, 444 U.S. 886, 100 S. Ct. 179 , 62 L. Ed. 2 d 116 (1979).

Discovery of death note during reasonable search. - When police officers acting in good faith and while carrying out an inventory procedure without investigative intent, discovered and read a "death note" contained in the defendant's open ended shopping bag, the search was deemed reasonable and, therefore, was not violative of the defendant's rights under U.S. Const., amend. 4. Mooney v. State, 243 Ga. 373 , 254 S.E.2d 337 , cert. denied, 444 U.S. 886, 100 S. Ct. 179 , 62 L. Ed. 2 d 116 (1979).

Second glance doctrine. - When one officer pursuant to a valid and proper inventory read and called attention to a "death note" found in the defendant's possessions and since the discovery and disclosure of the note were appropriate police actions, the subsequent acts of other officers, in rereading and perusing the documents in question were plainly justified under the "second glance doctrine." Mooney v. State, 243 Ga. 373 , 254 S.E.2d 337 , cert. denied, 444 U.S. 886, 100 S. Ct. 179 , 62 L. Ed. 2 d 116 (1979).

"Papers" not immune from searches. - There is nothing inherent in "papers" which immunizes the papers from searches otherwise proper under U.S. Const., amend. 4. Mooney v. State, 243 Ga. 373 , 254 S.E.2d 337 , cert. denied, 444 U.S. 886, 100 S. Ct. 179 , 62 L. Ed. 2 d 116 (1979).

Suspicion of contraband does not invalidate search. - Inventory rationale is one which may be abused and stretched to cover unnecessary searches; but even some suspicion that contraband will be found will not avoid an otherwise valid inventory search. Mooney v. State, 243 Ga. 373 , 254 S.E.2d 337 , cert. denied, 444 U.S. 886, 100 S. Ct. 179 , 62 L. Ed. 2 d 116 (1979).

Failure to give defendant inventory does not invalidate search. - When the circumstances authorized a warrantless search, the failure to make an inventory, being merely a ministerial act, did not affect the validity of the search and the arrest. Williams v. State, 125 Ga. App. 170 , 186 S.E.2d 756 (1971).

Failure to furnish the defendant an inventory of the items taken from the defendant's home does not establish that an unlawful search and seizure took place or that this evidence is inadmissible. Such failure is a ministerial act and does not affect the validity of the search. Carter v. State, 232 Ga. 654 , 208 S.E.2d 474 (1974).

Failure to give defendant inventory does not exclude evidence. - Failure to furnish a defendant with the inventory required by this section does not operate to exclude the recovered evidence from the trial. United States v. Baty, 486 F.2d 240 (5th Cir. 1973), cert. denied, 416 U.S. 942, 94 S. Ct. 1948 , 40 L. Ed. 2 d 294 (1974).

Failure to give inventory or follow other procedures does not necessarily suppress evidence. - When the executing officers give the defendant an inventory of the items seized, the officers' failure to deliver a similar inventory to the magistrate issuing the warrant as required by Ga. L. 1966, p. 567, § 2 (see O.C.G.A. § 17-5-2 ) and a return thereof on the warrant as required by Ga. L. 1966, p. 567, § 2 (see O.C.G.A. § 17-5-2 9) and a delivery to the sheriff of the items seized and a report to the commissioner of revenue are not cause for the suppression of the evidence. Holloway v. State, 134 Ga. App. 498 , 215 S.E.2d 262 (1975).

Failure to provide the defendant with an inventory as required by O.C.G.A. § 17-5-2 provides no basis for suppressing the inventory at trial. Ingram v. State, 211 Ga. App. 821 , 441 S.E.2d 74 (1994).

Failure to furnish inventory is ministerial act. - Seizure of evidence is not made invalid when the sheriff fails to make a written inventory as required by this section since failure to furnish an inventory to a defendant is a ministerial act and does not affect the validity of the search and seizure. Carson v. State, 241 Ga. 622 , 247 S.E.2d 68 (1978).

Ministerial act does not affect rights of defendant. - That the making and filing of an inventory pursuant to Ga. L. 1966, p. 567, § 2 (see O.C.G.A. § 17-5-2 ) is merely a ministerial act not affecting the substantive rights of an accused is borne out by the fact that failure to file an inventory is not a ground for a motion to suppress under the provisions of Ga. L. 1966, p. 567, § 13 (see O.C.G.A. § 17-5-30 ). Williams v. State, 125 Ga. App. 170 , 186 S.E.2d 756 (1971).

Custodial seizures and accompanying inventory searches are reasonable. Mooney v. State, 243 Ga. 373 , 254 S.E.2d 337 , cert. denied, 444 U.S. 886, 100 S. Ct. 179 , 62 L. Ed. 2 d 116 (1979).

Standard police practice required for reasonable custodial seizure. - Inventory searches are reasonable if conducted in accordance with standard police practice. Mooney v. State, 243 Ga. 373 , 254 S.E.2d 337 , cert. denied, 444 U.S. 886, 100 S. Ct. 179 , 62 L. Ed. 2 d 116 (1979); Gaston v. State, 155 Ga. App. 337 , 270 S.E.2d 877 (1980).

Reasonable to search car to itemize contents. - When the police take custody of any sort of container such as an automobile it is reasonable to search the container to itemize the property to be held by the police. Garner v. State, 154 Ga. App. 839 , 269 S.E.2d 912 (1980).

Custody of arrestee's property for safekeeping. - Fourth Amendment is not violated when police take custody of property of persons the police arrest to store that property for safekeeping. Mooney v. State, 243 Ga. 373 , 254 S.E.2d 337 , cert. denied, 444 U.S. 886, 100 S. Ct. 179 , 62 L. Ed. 2 d 116 (1979).

Motive immaterial for search under section. - Whenever a search is made pursuant to Ga. L. 1966, p. 567, §§ 1 and/or 2 (see O.C.G.A. § 17-5-1 and/or § 17-5-2 ) the motive for the search is irrelevant. Carson v. State, 241 Ga. 622 , 247 S.E.2d 68 (1978).

Inventory must not be done with investigative intent, but it should be incident to the caretaking function of the police. Mooney v. State, 243 Ga. 373 , 254 S.E.2d 337 , cert. denied, 444 U.S. 886, 100 S. Ct. 179 , 62 L. Ed. 2 d 116 (1979).

Inventory searches have two purposes: to protect the vehicle and the property in the vehicle, and to safeguard the police or other officers from claims of lost possessions. Garner v. State, 154 Ga. App. 839 , 269 S.E.2d 912 (1980); Thompson v. State, 155 Ga. App. 101 , 270 S.E.2d 313 (1980).

Inventory not just to protect property. - Police seizure and inventory is not dependent for its validity upon the absolute necessity for the police to take charge of property to preserve the property. Mooney v. State, 243 Ga. 373 , 254 S.E.2d 337 , cert. denied, 444 U.S. 886, 100 S. Ct. 179 , 62 L. Ed. 2 d 116 (1979); Thompson v. State, 155 Ga. App. 101 , 270 S.E.2d 313 (1980).

Inventory can be for broader reason than just to protect property. - Police seizure and inventory is not dependent for its validity upon the absolute necessity for the police to take charge of property to preserve the property. The police are permitted to take charge of property under broader circumstances than that. Garner v. State, 154 Ga. App. 839 , 269 S.E.2d 912 (1980); Thompson v. State, 155 Ga. App. 101 , 270 S.E.2d 313 (1980).

Inventory justified in order to protect police from danger. - Only so long as the scope of the search is reasonable, taking into consideration the three interests to be protected by the inventory (the protection of the owner's property while property remains in police custody; the protection of police against claims or disputes over lost or stolen property; and the protection of the police from potential danger), will the search be held to be a constitutionally permissible intrusion. Mooney v. State, 243 Ga. 373 , 254 S.E.2d 337 , cert. denied, 444 U.S. 886, 100 S. Ct. 179 , 62 L. Ed. 2 d 116 (1979).

Inventory not at prisoner's discretion. - Inventory is not for the exclusive protection of the owner, but also serves to protect the police and, therefore, it is not necessary that police ask a prisoner whether the prisoner wants personal items to be inventoried. Mooney v. State, 243 Ga. 373 , 254 S.E.2d 337 , cert. denied, 444 U.S. 886, 100 S. Ct. 179 , 62 L. Ed. 2 d 116 (1979).

Accused need not be present for inventory search. - There is no requirement for the accused's presence during a routine inventory of valuables in an impounded car done in accordance with Ga. L. 1966, p. 567, § 2. Carson v. State, 241 Ga. 622 , 247 S.E.2d 68 (1978).

Seizure of car not part of crime permitted even when not threat to public. - Any inference from the language in both Dunkum v. State, 138 Ga. App. 321 , 226 S.E.2d 133 (1976) and State v. McCranie, 137 Ga. App. 369 , 223 S.E.2d 765 (1976) suggesting that seizure and inventorying of an automobile not involved in an offense against the law may be justified only when the automobile poses some threat to the traveling public, such as impeding the roadway, is mistaken. Mooney v. State, 243 Ga. 373 , 254 S.E.2d 337 , cert. denied, 444 U.S. 886, 100 S. Ct. 179 , 62 L. Ed. 2 d 116 (1979).

Impoundment may be illegal. - Even though the decision to seize and inventory need not be based upon the absolute necessity to do so, unless the rationale for an inventory search inheres in the decision to seize and inventory, the impoundment itself may be unreasonable and the resulting inventory search invalid. Garner v. State, 154 Ga. App. 839 , 269 S.E.2d 912 (1980); Thompson v. State, 155 Ga. App. 101 , 270 S.E.2d 313 (1980).