McMiken v. State

127 Ga. App. 66 (1972)

192 S.E.2d 716

McMIKEN et al. v. THE STATE.

47429.

Court of Appeals of Georgia.

Submitted September 11, 1972.

Decided September 19, 1972.

Ben Lancaster, for appellant.

David N. Vaughan, Jr., District Attorney, for appellee.

PANNELL, Judge.

The defendants appeal their convictions and sentences for possession of gambling devices and possession of more than one quart of alcoholic liquor in a dry county.

Defendants' motion to suppress the evidence of whiskey and gambling devices, seized under a search warrant, and testimony related thereto, was overruled. Defendants contended that the warrant was illegal, there being no probable cause for the issuance of the warrant because the affidavit did not contain, inter alia, sufficient statements as to when the informers obtained the information reported by the informers, or when the informers reported the information reported to the informers or a sufficient showing that the information reported by the informers related to criminal activity closely related in time to the date of the affidavit. The affidavit does not set forth the time the informers obtained the information, the time the informers reported the information, or the time the evidence was in the possession of the defendants. This court has repeatedly held that a "prime element in the concept of probable cause is the time of the occurrence of the facts relied upon." Fowler v. State, 121 Ga. App. 22, 23 (172 SE2d 447); Windsor v. State, 122 Ga. App. 767, 768 (178 SE2d 751); Gilliam v. State, 124 Ga. App. 843 (186 SE2d 290). The trial court erred in overruling the defendants' motion to suppress.

Judgment reversed. Hall, P. J., and Quillian, J., concur.