Opinion
42379.
SUBMITTED OCTOBER 3, 1966.
DECIDED OCTOBER 11, 1966. REHEARING DENIED OCTOBER 27, 1966.
Lottery; bolita. Savannah City Court. Before Judge Oliver.
Ralph L. Crawford, for appellant.
Andrew J. Ryan, Jr., Solicitor, Tom A. Edenfield, for appellee.
1. The trial court did not err in admitting evidence secured as the result of a search of the defendant's place of business.
2. While evidence may otherwise be inadmissible it is not ground for a mistrial where on cross examination a question is answered which is responsive to the question asked by the movant.
3. It is not error to refuse a request of the jury to have a lengthy excerpt from the evidence, which has been recorded, replayed.
4. The evidence authorized the verdict.
SUBMITTED OCTOBER 3, 1966 — DECIDED OCTOBER 11, 1966 — REHEARING DENIED OCTOBER 27, 1966 — CERT. APPLIED FOR.
The defendant was tried and convicted upon an accusation charging that he did "keep, maintain, employ and carry on a certain scheme and device for the hazarding of money, such scheme and device being known as and called `bolita.'" The defendant appealed and enumerated as error the admission of evidence allegedly procured by an illegal search warrant, the overruling of a motion for mistrial, a recharge by the court, and because the evidence was insufficient to establish the guilt of the accused.
1. "(a) When a search warrant and the affidavit upon which it is issued do not recite sufficient facts upon which a determination of probable cause could be made by the issuing magistrate, the burden is on the State to show that sufficient facts were submitted before the magistrate to establish the existence of probable cause. (b) To support a finding of probable cause for the issuance of a search warrant, there must be presented by oath or affirmation to the issuing magistrate some of the underlying circumstances causing the officer applying for the warrant to believe that there is probable cause to search the premises and, if the officer relies on an informant, some of the underlying circumstances from which the officer concluded that his informant was reliable." Marshall v. State, 113 Ga. App. 143 (1) ( 147 S.E.2d 666). The evidence presented by the State as to the facts testified to before the magistrate were sufficient to authorize the issuance of such warrant.
2. During cross examination of one of the State's witnesses the defendant elicited testimony that the defendant was advised of his right to refuse to answer any questions and that the defendant did thereafter refuse to answer any questions. The answers were directly responsive to the questions asked by the defendant's counsel and under decisions exemplified by Scott v. State, 57 Ga. App. 187 ( 194 S.E. 844); Mickle v. Moore, 188 Ga. 444, 448 ( 4 S.E.2d 217), it was not error to refuse to grant the defendant's motion for mistrial based on the testimony elicited by the movant.
3. Under the decision in Jefferson v. State, 101 Ga. App. 308 (5) ( 113 S.E.2d 500), it was not error for the trial court to refuse the request of the jury to have the testimony of one of the State's witnesses and that of the defendant "replayed" (the oral testimony having been recorded by the court reporter). Particularly is this true where the transcribed testimony is very lengthy. In the present case the testimony of the State's witness and that of the defendant constituted approximately sixty-six pages of the record.
Nor did the trial court commit error in instructing the jury, after the above request to again hear the testimony was denied, that the testimony of the State's witness and the defendant was quite lengthy and requested that they deliberate further and see if they could reach a verdict without the playback as the hour was late. See Yancy v. State, 173 Ga. 685 (5) ( 160 S.E. 867); McKibben v. State, 187 Ga. 651 (3) ( 2 S.E.2d 101).
4. The evidence authorized the verdict. See Nickolas v. State, 114 Ga. App. 306 ( 151 S.E.2d 168).
Judgment affirmed. Hall and Deen, JJ., concur.