State v. Thomas

150 Ga. App. 170 (1979)

257 S.E.2d 28

THE STATE v. THOMAS.

57598.

Court of Appeals of Georgia.

Submitted April 9, 1979.

Decided May 17, 1979.

Rehearing Denied June 5, 1979.

Hinson McAuliffe, Solicitor, Leonard W. Rhodes, Assistant Solicitor, for appellant.

Frank J. Petrella, for appellee.

BANKE, Acting Presiding Judge.

The state appeals the partial grant of the defendant's motion to suppress evidence in this prosecution for the distribution of obscene materials. It is urged both that the motion is facially defective and that the defendant did not meet his burden of proving that the search and seizure were illegal. Held:

1. The contention that the motion was facially defective cannot be considered on appeal since it was not raised in the trial court. See Nix v. State, 94 Ga. App. 141 (2) (93 SE2d 783) (1956); Bell v. State, 144 Ga. App. 692 (1) (242 SE2d 345) (1978).

2. The burden of proving that the search was lawful was on the state, not the defendant. Code Ann. § 27-313 (b); State v. Mabrey, 140 Ga. App. 577, 579 (231 SE2d 461) (1976).

Judgment affirmed. Underwood and Carley, JJ., concur.