Evans v. State

• Decision Date: 04 March 1899
• Citation: 32 S.E. 659,106 Ga. 519
• Parties: EVANS v. STATE.
• Court: Georgia Supreme Court

32 S.E. 659

106 Ga. 519

EVANS v. STATE.

Supreme Court of Georgia

March 4, 1899

Syllabus by the Court.

Following the decision of this court in the case of Day v State, 63 Ga. 667, the evidence which was offered by the state, and admitted, showing that the accused, while not under legal arrest, had been compelled to put his hand in his pocket and surrender a pistol, thus disclosing that he was violating the law, was not admissible on the trial of such person for the offense of carrying a concealed weapon alleged to have been committed on that occasion.

Error from city court of Hall county; G. H. Prior, Judge.

Will Evans was convicted of carrying a concealed weapon, and brings error. Reversed.

H. H Dean, for plaintiff in error.

Howard Thompson, Sol. Gen., for the State.

COBB J.

Evans was convicted of the offense of carrying a concealed weapon. His motion for a new trial was overruled, and he excepted.

The only witness introduced on the trial of the case was Brown, a policeman, who testified that he was called up at night in Gainesville, Hall county, on account of some disturbance. When he got to the place where the disturbance was alleged to have occurred, he saw nobody, but was told that the accused had been shooting around there. After a while he saw the accused coming down the road. At this point the witness was allowed to testify as follows: "I told him to give up his pistol, and he said, 'What pistol?' and I said, 'The one you have been shooting with.' He refused to give it up, but I called Mr. Lyles, another policeman, and we forced him to give it up. He had it in his hand, under his coat, and it was concealed so I could not see it until after I compelled him to give it up." After this, witness arrested the accused. He had no warrant for the accused; and neither had Lyles, the other policeman. That part of the testimony of the witness which is quoted above was objected to by the accused on the ground that "no party can be compelled to give evidence against himself by act or words." The refusal of the court to exclude this evidence is assigned as error in the motion for a new trial.

The constitution of this state provides that "no person shall be compelled to give testimony tending in any manner to criminate himself." Civ. Code, § 5703. In the case of Day v. State, 63 Ga. 667, it was held that "Evidence that a witness forcibly placed defendant's foot in certain tracks near the scene of the burglary, and that they were of the same size, is not admissible. A defendant cannot be compelled to criminate himself by acts or words." In that case, Allen, a witness for the state, testified that: "Witness took hold of [the accused], and pulled him along, and then he put his foot in the track. The first time witness told him to put his foot in the track, defendant refused. Witness then took hold of his foot and put it in the track. He did not consent to it. The shoe fitted the track." This evidence was admitted over the objection of the accused that it was compelling him to furnish evidence against himself, contrary to the constitution of the state. Chief Justice Warner, after quoting the constitutional provision above set out, added: "Nor can one, by force, compel another, against his consent, to put his foot in a shoe track, for the purpose of using it as evidence against him on the criminal side of the court,--the more especially when the person using such force has no lawful warrant or authority for doing so." It will thus be seen that in the case cited the constitutional provision was construed to apply to cases other than those in which the accused was forced to give evidence against himself, either in court, or pursuant to an order of court. In the present case, neither the officer who testified nor the officer who assisted in the arrest had any warrant for the accused, nor was any arrest made until after the accused...