Smith v. State

• Decision Date: 20 December 1907
• Docket Number: 829.
• Parties: SMITH v. STATE.
• Court: Georgia Court of Appeals

59 S.E. 934

3 Ga.App. 326

SMITH v. STATE.

No. 829.

Court of Appeals of Georgia

December 20, 1907

Syllabus by the Court.

The error sufficient to warrant the grant of a new trial must be such an error as contributed to or caused the verdict complained of. A verdict of guilty would have been demanded in this case if the evidence objected to had been excluded and a new trial need not be granted for the purpose of reaching the same result technically.

[Ed Note.-For cases in point, see Cent. Dig. vol. 15, New Trial § 2207.]

While one cannot be compelled to give evidence against himself, and evidence obtained by an illegal arrest and unlawful seizure and search of one's person is inadmissible, because the defendant is thus compelled to testify against himself evidence obtained by illegal search or illegal seizure of one's property may be used in evidence.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 14, Criminal Law, §§ 876, 877.]

(a) The protection against self-incrimination, contained in Const. art. 1, § 1, par. 6 (Civ. Code 1895, § 5703), is entirely distinct from the right guaranteed in paragraph 16 of the same article (Civ. Code 1895, § 5713). The Constitution protects a person both against being compelled to give testimony tending to criminate himself and against unlawful searches and seizures, but the two are entirely distinct.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 14, Criminal Law, § 872.]

(b) While, in a prosecution for a violation of the law forbidding the sale of intoxicating liquors, a bottle of whisky forcibly taken from the person of the accused, if illegally arrested, would not be admissible in evidence against him because he might thereby be compelled to furnish testimony against himself, still, if he be legally arrested, whisky found at his residence or place of business would be admissible in evidence against him.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 14, Criminal Law, § 877.]

(c) One who sees another sell whisky in his presence may arrest without a warrant, and may seize the whisky in the possession of the defendant for the purpose of using it as evidence.

(d) It is only when by an unlawful search and seizure under an illegal arrest, the defendant is compelled to furnish incriminating evidence that such evidence is not admissible.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 14, Criminal Law, § 877.]

Error from City Court of Waycross; Jno. T. Myers, Judge.

Leon Smith was convicted of selling liquor without a license, and he brings error. Affirmed.

J. L. Sweat, for plaintiff in error.

Jno. C. McDonald, Sol., for the State.

RUSSELL J.

The defendant was convicted of the offense of selling liquor without a license. He insists that his conviction was illegal and unauthorized. He was tried by the judge of the city court without the intervention of a jury; trial by jury being waived. Two special exceptions are taken to the admission of testimony, and whether the defendant is entitled to a new trial is dependent upon these exceptions. In the fourth ground of the amended motion for new trial error is assigned on the admission of the testimony of the Sheriff Woodward that on the night of September 25, 1907, one Jack Dolan drove up in front of the courthouse in a drunken condition, and stated that he was going to find some "booze." This evidence was objected to by defendant's counsel as being mere hearsay, illegal, and inadmissible against the defendant, and for the reason that Jack Dolan was a competent witness, and was not produced, nor any foundation laid for the introduction in evidence of his sayings, and that his drunken condition rendered his statements of no weight and worthy of no credence. In the fifth ground of the motion it is alleged that the court erred in allowing the state to introduce in evidence the whisky claimed to have been taken from the defendant, over the objection that it was not legal evidence and was inadmissible.

The evidence in behalf of the state was as follows: D. A. Woodward, sheriff, testified that on the night of September 25, 1907, Jack Dolan drove up in front of the courthouse in a somewhat drunken condition and about the time that he started off he stated that he was going to get some "booze." The sheriff and the constable, C. E. Cason, followed him, and when within about 100 yards of his house met him coming back with two pints of whisky. The witness then gave him $1.50 in silver money to go back and get him more pint bottles of whisky. Cason and the sheriff went around and up to the house, and heard Dolan call the defendant, who got out of bed. Witness then heard Dolan tell him to let him have two more pints of whisky, and Dolan jingled the money in his hand as he had been told to do, and witness saw him reach out his hand as if to give the defendant the money for the whisky. After Dolan delivered these two pint bottles of whisky to the sheriff, the sheriff went into the defendant's house, and got several other bottles. The sheriff testified that he then arrested the defendant, and carried him to the jail. Witness told defendant that he had gotten entirely too bold. In response to this statement of the sheriff the defendant made no denial of selling whisky. On the contrary, he replied that he had not handled as much as was thought. He had only gotten about one case a week. The testimony of the constable, Cason, was substantially as testified by the sheriff. The whisky taken from the defendant by the sheriff, together with the two bottles procured through Dolan, was then introduced in evidence over the defendant's objection.

The defendant stated that the Saturday night previous to his arrest himself, C. E. Smith, John D. Davenport, and Jack Dolan were together in Waycross, when they agreed to go on a fishing trip, and arranged to order some whisky for the trip C. E. Smith putting in $3, Davenport $4, and the defendant himself $3, and that he also put in $2 for Jack Dolan, as he did not have the money at the time. Dolan was to pay back the money when the whisky came. The $12 made up was sent to a house in Savannah, and the whisky ordered in the defendant's name. When the whisky came, it was carried to defendant's house at Gilchrist Park. The defendant further stated that on the night he was arrested Jack Dolan first came to him and paid him back $1 of the money that he had advanced, and he gave Dolan two bottles of the whisky. In about 30 minutes Dolan came back, saying that he must have two more bottles, and "I gave it to him, and he handed me the other $1, making the $2 which I had advanced to him." The defendant stated that, if Dolan had more money in his hand, he gave him only $1 the last time. The defendant stated that he also paid the express charges, and that, before his arrest, he bought frying pans, lard, and other things for the fishing trip, and notified Mr. Hickox, who lives down in the Okefenokee swamp, that the party was going down there on a fishing trip, and would bring some "booze" with them. C. E. Smith and J. D. Davenport, as witnesses for the defendant, corroborated the statement of the defendant as to the agreement to take the fishing trip, and as to the purchase of the whisky for that purpose, the several parties contributing to the purchase of the whisky the amounts stated by the defendant and $2 being advanced by the defendant for Dolan, as stated by the defendant. D. W. Pitman as a witness for the defendant testified that the defendant the day before he was...