Pullen v. State

• Decision Date: 06 March 1923
• Docket Number: 14127.
• Citation: 116 S.E. 871,30 Ga.App. 24
• Parties: PULLEN v. STATE.
• Court: Georgia Court of Appeals

116 S.E. 871

30 Ga.App. 24

PULLEN v. STATE.

No. 14127.

Court of Appeals of Georgia, First Division

March 6, 1923

Syllabus by the Court.

On the trial of a criminal case incriminatory evidence is not inadmissible against the accused even though it was discovered by his illegal arrest and by unlawful search of his person, where he was not compelled to produce such evidence.

In the absence of a timely and appropriate written request for fuller instructions, the charge to the jury sufficiently informed them that the burden was upon the state to establish the guilt of the accused.

While counsel should not be permitted to state in argument facts which are not in evidence, it is permissible to draw deductions from the evidence, and the fact that the deductions may be illogical, unreasonable, or even absurd is a matter for reply by adverse counsel, and not for rebuke by the court.

The evidence is ample to support the verdict.

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

T. T Pullen was convicted of carrying concealed weapons, and he brings error. Affirmed.

Bale & Lesser, of Rome, for plaintiff in error.

E. S Taylor, Sol. Gen., of Summerville, and J. F. Kelly, of Rome for the State.

BLOODWORTH J.

A county policeman, upon receiving information that the plaintiff in error "had some whisky on his person," arrested him without a warrant, searched him, and "found a pistol and four pints of whisky on him." He was convicted of carrying concealed weapons. In his motion for a new trial he insists that he "was illegally arrested without a warrant, and while under such arrest was searched and forcibly required to furnish testimony against himself," that "the evidence was in violation of the law providing that no person shall be compelled to give testimony tending in any manner to criminate himself," and he asked that the evidence that the pistol was found in his pocket be ruled out. He insists also that the court erred in refusing to give a requested charge to the jury in reference to the alleged illegal arrest, and also the further charge:

"If you find from the evidence submitted in this case that the arrest of the defendant was illegal, and that the arresting officer searched the defendant after such arrest and took from his person a pistol which was concealed on his person from its place of concealment, such search would be illegal, and it would be your duty to find the defendant not guilty."

The case of Dozier v. State, 107 Ga. 708, 33 S.E. 418, was a case where, as in this case, the accused, while under arrest for another offense, was searched and a pistol found concealed in his pocket. The first headnote of the decision in that case is as follows:

"There was no error, on the trial of an indictment for carrying a concealed weapon, in allowing the sheriff to testify that, the accused being in his custody, under a warrant for a criminal offense, he searched him and found a pistol concealed in his pocket."

In the opinion Mr. Justice Little said:

"Counsel for plaintiff in error contends that the sheriff should not have been permitted to testify to the fact that, having the plaintiff in error under arrest for another and different offense, he searched him and found in one of his coat pockets a pistol which was concealed, because the effect of this evidence was to compel the defendant to give evidence which tended to criminate himself; and we are cited to the following adjudications of this court to support that contention: Day v. State, 63 Ga. 667; Blackwell v. State, 67 Ga. 76; Evans v. State, 106 Ga. 519. An examination of these cases shows that the rulings made therein do not support such contention. * * * In the case at bar, however, the plaintiff in error was not compelled to furnish any evidence at all. The sheriff simply searched him and found a pistol concealed in his pocket. Whether the search was lawful or unlawful can make no difference as to the admissibility of the evidence. The question is: Did he have a concealed pistol about his person? It was the sheriff who furnished the evidence, and not the prisoner. This point has been expressly ruled by this court in the case of Williams v. State, 100 Ga. 511, against the contention of the counsel for the plaintiff in error. In that case presiding Justice Lumpkin delivered a well-considered opinion in which it is said: 'We know of no law in Georgia which renders inadmissible in evidence the fruits of an illegal and wrongful search and seizure; nor are we aware of any statute from which it could be logically gathered that the admission of such evidence violates any recognized principle of public policy.' So that, even admitting that the search of the person of the plaintiff in error by the sheriff was illegal--which it does not appear to be--the evidence of the sheriff was nevertheless admissible." (Italics ours.)

In this case, as in the case from which we have just quoted, it was the officer who furnished the evidence, and not the prisoner. The accused was not forced to produce evidence against himself.

In Springer v. State, 121 Ga. 155 (2), 48 S.E. 907, the Supreme Court held:

"Evidence that a witness searched the person of the accused and discovered a concealed pistol on his person is not rendered inadmissible because the witness may not have had a legal right to make the search."

In Groce v. State, 148 Ga. 520 (1), 97 S.E. 525, the Supreme Court held:

"On the trial of a criminal case incriminatory evidence is not inadmissible against the accused, notwithstanding it was discovered by his illegal arrest and by an unlawful search of his person and premises, where he was not compelled to produce such evidence. This rule of evidence is not violative of the constitutional provision to the effect that no person shall be compelled to give testimony tending in any manner to criminate himself; nor does it contravene the constitutional provision of unreasonable searches and seizures; nor is it contrary to the due process provision of the state and federal Constitutions; nor does it contravene so much of the Fourteenth Amendment of the federal Constitution as declares that no state shall 'deny to any person within its jurisdiction the equal protection of the laws.' "

See cases cited. See, also, Martin v. State, 148 Ga. 406 (1), 96 S.E. 882; Kennemer v. State (Ga. Sup.) 113 S.E. 551; Johnson v. State, 152 Ga. 271, 109 S.E. 662, 19 A.L.R. 641. In the opinion in the latter case Justice George said:

"The almost unvarying rule in state courts is that upon the trial of criminal cases the court, largely to avoid a collateral issue, will receive any competent evidence without enquiring into the means by which it has been procured. In answer to question certified by the Court of Appeals, the rule was definitely accepted by this court in Calhoun v State, 144 Ga. 679, 87 S.E. 893. An examination of the cases there reviewed will show that the general rule had been long in force in this state. The

decision in Calhoun v. State was by a full bench of six justices. The ruling there made is supported

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