Johnson v. State

• Decision Date: 17 November 1921
• Docket Number: (No. 2526.)
• Citation: 109 S.E. 662,152 Ga. 271
• Parties: JOHNSON. v. STATE.
• Court: Georgia Supreme Court

152 Ga. 271

109 S.E. 662

JOHNSON.

v.STATE.

(No. 2526.)

Supreme Court of Georgia.

Nov. 17, 1921.

(Syllabus by the Court.)

Error from Superior Court, Fulton County; Geo. L. Bell, Judge.

James Johnson was convicted of carrying concealed weapons, and petition for certiorari was refused by the judge of the superior court, and he brings error. Affirmed.

S. C. Crane, of Atlanta, for plaintiff in error.

Roy Dorsey, Sol., and Jno. A. Boykin, Sol. Gen., both of Atlanta, for the State.

GEORGE, J. The facts in this case are brief. James Johnson was tried and convicted in the criminal court of Atlanta for the offense of carrying concealed weapons. Upon the trial a detective of the city of Atlanta testified as follows:

"In the performance of my duty [as city detective] I arrested the defendant * * * in the city of Atlanta, Fulton county, upon suspicion of burglary. I had information that he had a pistol concealed on his person. Upon arresting him I searched his person, and while searching his person a pistol slipped out of his shirt and it was picked up. I had no warrant for his arrest, and this defendant was never prosecuted for any offense except the charge of carrying concealed weapons. * * * The pistol was concealed from view at the time of the search."

Counsel for the defendant moved to exclude the testimony of the witness, because the evidence was obtained by violating the right secured to the defendant by the Fourth Amendment to the Constitution of the United States and by paragraph 16 of section 1 of article 1 of the Constitution of this state (Civil Code of 1910, § 6372). The court overruled the objection, and adjudged the defendant guilty, whereupon he presented his petition for certiorari to the judge of the superior court. Sanction of the writ was refused, and the defendant excepted. The single assignment of error here insisted upon is that the court erred in overruling the motion to exclude the evidence of the witness, upon the grounds urged; the contention being that the prohibition against unreasonable searches and seizures contained in the Fourth Amendment to the Constitution of the United States is, by virtue of the provision of the Fourteenth Amendment to that Constitution, one of the privileges and immunities of the citizens of the United States which may not be abridged by the states, and that the right of the citizen to be secure in his person against unreasonable searches and seizures is a right included in the conception of due process of law guaranteed by the Fourteenth Amendment.

The first ten amendments to the Constitution of the United States—including, of course, the Fourth—refer to powers exercised by the government of the United States, and not to those of the individual states. In other words, the Fourth Amendment is not concerned with state action, and deals only with federal action. Almost from the beginning this principle has been consistently recognized by the Supreme Court of the United States. Barron v. Baltimore, 7 Pet. 243, 8 L. Ed. 672, Fox v. Ohio, 5 How. 410, 434, 12 L. Ed. 213, Twitchell v. Pennsylvania, 7 Wall. 321, 19 L. Ed. 223, Brown v. New Jersey, 175 U. S. 172, 20 Sup. Ct. 77, 44 L. Ed. 119. Twining v. New Jersey, 211 U. S. 78, 93, 29 Sup. Ct 14, 53 L. Ed. 97, and Minn., etc., R. Co. v. Bombolis, 241 U. S. 211, 217, 36 Sup. Ct 595, 60 L. Ed. 961, L. R. A. 1917A, 86, Ann. Cas. 1916E, 505, are among the leading eases in point. See Loeb v. Jennings, 133 Ga. 796, 67 S. E. 101, 18 Ann. Cas. 376.

With respect to the further contentions of plaintiff in error, kindred questions were raised in Adams v. New Tork, 192 U. S. 585, 24 Sup. Ct. 372, 48 L. Ed. 575, and Consolidated Rendering Co. v. Vermont, 207 U. S. 541, 28 Sup. Ct. 178, 52 L. Ed. 327, 12 Ann. Cas. 658; but the questions were left undecided, as those cases were disposed of on other grounds. In the leading case of Twining v. New Jersey, 211 U. S. 78, 29 Sup. Ct. 14, 53 L. Ed. 97, it was decided that "the first eight amendments are restrictive only of national action and, while the Fourteenth Amendment restrained and limited state action, it did not take up and protect citizens of the states from action by the states as to all matters enumerated in the first eight amendments, " and that exemption from compulsory self-incrimination in the state courts is not secured by the fifth amendment to the federal Constitution, nor is it one of the fundamental Eights, immunities, and privileges of citizens of the United States, or an element of due process of law within the meaning of the federal Constitution or the Fourteenth Amendment thereto. This case is in principle controlling. See, also, Minn., etc., It. Co. v. Bombolis, supra. It is insisted, however, that the decision in Twining v. New Jersey, supra, is modified and in effect overruled by the recent decisions of the Supreme Court of the United States in Gouled v. U. S., 255 U. S. 298, 41 Sup. Ct. 261, 65 L. Ed.—, and Amos v. U. S., 255 U. S. 313, 41 Sup. Ct 266, 65 L. Ed. —. In Gouled's Case it was ruled:

"The prohibition of Const. Amend. 4, against unreasonable searches and seizures is violated when a representative of any branch or subdivis...