Bissel v. State , 126 Ga. App. 61 ( 1972 )

126 Ga. App. 61 (1972) 189 S.E.2d 701

BISSEL
v.
THE STATE.

47075.

Court of Appeals of Georgia.

Argued April 3, 1972. Decided April 12, 1972.

William L. Gower, John McGuigan, for appellant.

Ben F. Smith, District Attorney, for appellee.

BELL, Chief Judge.

The defendant was convicted of burglary. He appeals from the order overruling his motion for new trial. 1. The defendant has limited his argument on the general grounds to the theory that under the facts of this case he cannot be convicted of burglary. The evidence amply shows that the defendant unlawfully entered a gasoline service station with intent to commit theft. It is urged that a building of this nature is not the subject of burglary under the provisions of Code Ann. § 26-1601 (Ga. L. 1968, pp. 1249, 1287). This argument has no merit and is controlled adversely to appellant by Mixon v. State, 226 Ga. 869 (178 SE2d 189).

2. After the commencement of the trial and the hearing of testimony of witnesses, the defendant objected to the receipt of certain evidence on the ground that it was obtained as the result of an unlawful arrest of defendant and a search of his automobile. The trial judge overruled the objection. Defendant made no motion to suppress the evidence in writing as required by Code Ann. § 27-313. Failure to comply with this statutory provision amounts to a waiver of the constitutional guarantee in respect to the challenged search and seizure. Lane v. State, 118 Ga. App. 688 (165 SE2d 474).

Judgment affirmed. Evans and Stolz, JJ., concur.