Kennemer v. State

• Decision Date: 18 August 1922
• Docket Number: 3255.
• Citation: Kennemer v. State, 154 Ga. 139, 113 S.E. 551 (Ga. 1922)
• Parties: KENNEMER v. STATE.
• Court: Georgia Supreme Court

113 S.E. 551

154 Ga. 139

KENNEMER v. STATE.

No. 3255.

Supreme Court of Georgia

August 18, 1922

Syllabus by the Court.

On the trial of a criminal case, incriminating evidence, which was discovered by an unreasonable search and seizure of the effects of a defendant, is not inadmissible, as contravening paragraph 16 of section 1 of article 1 of the Constitution of this state (Civ. Code 1910, § 6372), prohibiting unreasonable searches and seizures.

The construction put by the Supreme Court of the United States upon the Fourth Amendment to the Constitution of the United States, which operates solely as a limitation upon the power of the United States government, is binding upon this court only within the sphere of its operation; but it does not supersede and set aside the construction which this court has put upon the like provision in the Constitution of this state, and which governs or regulates trials in criminal cases in state courts.

The former unanimous decisions of this court upon this question are binding upon this court until reviewed and reversed by a full bench.

Error from Superior Court, Walker County; Moses Wright, Judge.

James Kennemer was convicted of a violation of the Prohibition Law and he brings error. Affirmed.

G. E Maddox, of Rome, and Rosser & Shaw, of La Fayette, for plaintiff in error.

E. S Taylor, Sol., of Summerville, for the State.

HINES J.

There is but one question for decision in this case, and that question is whether incriminating evidence, secured by the unlawful search of a defendant's automobile and the seizure of intoxicating liquor therein, is admissible against the defendant in a prosecution for a violation of the Prohibition Law. This question has been decided by this court adversely to the defendant, and the principle is now firmly embodied in the law of this state. Calhoun v. State, 144 Ga. 679, 87 S.E. 893; Martin v. State, 148 Ga 406, 96 S.E. 882; Hysler v. State, 148 Ga. 409, 96 S.E. 884; Groce v. State, 148 Ga. 520, 97 S.E. 525; Johnson v. State, 152 Ga. 271, 109 S.E. 662; McAllister v. State, 17 Ga.App. 159 (2), 86 S.E. 412.

But it is insisted that the Supreme Court of the United States has taken a different view of this question. Gouled v. U.S. , 255 U.S. 298, 41 S.Ct. 261, 65 L.Ed. 647; Amos v. U.S. , 255 U.S. 313, 41 S.Ct. 266, 65 L.Ed. 654. That is true, so far as the provision of the federal Constitution on this subject affects the trial of criminal cases in the United States courts. After the above cases were decided, this court considered them, and adhered to its former rulings. Johnson v. State, 152 Ga. 271, 109 S.E. 662.

The provisions against unreasonable searches and seizures are identical in the Constitutions of the United States and of this state. Const. art. 1,§ 1, par. 16; Const. U.S. Amend. 4 (Civil Code, §§ 6372, 6687). The provision in the federal Constitution applies...