Bowen v. State, (No. 17958.)

• Decision Date: 12 April 1927
• Docket Number: (No. 17958.)
• Citation: Bowen v. State, 36 Ga.App. 666, 137 S.E. 793 (Ga. App. 1927)
• Parties: BOWEN. v. STATE.
• Court: Georgia Court of Appeals

36 Ga.App. 666

137 S.E. 793

BOWEN.

v.STATE.

(No. 17958.)

Court of Appeals of Georgia, Division No. 1.

April 12, 1927.

(Syllabus by Editorial Staff.)

Error from Superior Court, Whitfield County; M. C. Tarver, Judge.

Luther Bowen was convicted of violating the liquor laws, and he brings error. Reversed.

S. R. Brooke and Maddox & Maddox, all of Dalton, for plaintiff in error.

C. C. Pittman, Sol. Gen., of Cartersville, and J. C. Mitchell, Sol. Gen., of Dalton, for the State.

Syllabus Opinion by the Court.

BLOODWORTH, J. [1] 1. Notwithstanding the statutory inhibition against a wife, in a criminal case, testifying against her husband, except "for any criminal offense committed, or attempted to have been committed, upon her person" (Penal Code 1910, § 1037, subd. 4), yet, where a wife makes statements in the presence of her husband and a third person which would implicate her husband in the violation of a criminal statute, and the husband makes no denial thereof, the third person may testify as to these statements (Penal Code 1910, § 1029; Joiner v. State, 119 Ga. 315 [1], 46 S. E. 412).

Such statements of the wife are admissible only when they are a part of the res gestae, or where "the circumstances require an answer or denial" on the part of the husband. The statements of the wife in this case, which it was sought to introduce as evidence, were not res gestae statements, but were made after the alleged illegal act and while the witness was upon the stand during an investigation by a judicial officer, and at a time when "silence, if not required, was at least justified as a matter of decorum." Bell v. State, 93 Ga. 557, 559, 19 S. E. 244. See in this connection, Graham v. State, 118 Ga. 807, 808, 45 S. E, 616; Johnson v. State, 151 Ga. 25, 26, 105 S. E. 603. Under the facts of this case, the judge erred in allowing a third person to testify to statements alleged to have been made by the wife of the accused.

2. The evidence shows that whisky was found in a barn that was "just a short" distance from the dwelling house of the accused; that in this barn the accused kept some "stock"; that others also used the barn: that through the barn runs a hallway that connects with a lane; and that "a good many people travel through that way." After eliminating the evidence of his wife, which was illegally admitted, the only evidence connecting the accused with the possession of the liquor was entirely circumstantial, and, because of the facts just stated, did not exclude every...