Smith v. State

• Decision Date: 28 February 1916
• Docket Number: (No. 6098.)
• Parties: SMITH. v. STATE.
• Court: Georgia Court of Appeals

17 Ga.App. 693

88 S.E. 42

SMITH.

v.STATE.

(No. 6098.)

Court of Appeals of Georgia.

Feb. 28, 1916.

(Syllabus by the Court.)

Error from City Court of Macon; Robt. Hodges, Judge.

Will Smith was convicted of carrying a concealed weapon, and brings error. Affirmed, conforming to answer to certified questions, which can be found in 87 S. E. 893.

W. A. McClellan, of Macon, for plaintiff in error.

John P. Ross, Sol. Gen., of Macon, for the State.

BROYLES, J. Will Smith was arrested, in the city of Macon, by a police officer, without a warrant, on the complaint of a citizen that he had committed the offense of larceny, and after the officer made the arrest he searched the defendant and found a pistol concealed in his pocket. The only witness in the case testified as follows:

"I am a police officer of the city of Macon. I was such on the 11th day of June of this year when I arrested the defendant, Will Smith. I had no warrant for him. He had committed no crime in my presence, and was not endeavoring to escape. He was on Cherry street, city of Macon. in Bibb county, Ga., going in the direction of the American National Bank, where he works, at the time I arrested him. I arrested him on a larceny complaint made by Mr. John Wilson. After his arrest I searched him, and found in his right hip pocket a pistol. He had on a coat. The pistol was concealed at the time I arrested him, and I did not know he had it until I searched him. I took the pistol from his pocket myself. He was under arrest at the time I made the search. He made no objection when 1 searched him, and I pulled the pistol out of his pocket myself."

The defendant in the court below objected to this evidence, on the ground that it was procured by the unlawful search and illegal arrest of the defendant, and that the defendant was compelled by the officer to furnish the incriminating evidence against him in violation of the constitutional provision of this state that "no person shall be compelled to give testimony tending in any manner to criminate himself." The trial judge overruled the objection, and admitted the evidence, and the defendant excepted.

While the majority of the court considered that this question had already been definitely settled by the numerous decisions of the Supreme Court (Franklin v. State, 69 Ga. 36, 47 Am. Rep. 748; Drake v. State, 75 Ga. 413; Woolfolk v. State, 81 Ga. 552, 8 S. E. 724; Rusher v. State, 94 Ga. 363, 21 S. E. 593, 47 Am. St. Rep. 175; Myers v. State, 97 Ga. 76, 25 S. E. 252; Williams v. State, 100 Ga. 511, 28 S. E. 624, 39 L. R. A. 269; Evans v. State, 106 Ga. 519, 32 S. E. 659, 71 Am. St. Rep. 276; Dozier v. State, 107 Ga. 708, 33 S. E. 418; Sanders v. State, 113 Ga. 267, 38 S. E. 841; Springer v. State, 121 Ga. 155, 48 S. E. 907; Duren v. Thomasville, 125 Ga. 1, 53 S. E. 814; Goolsby v. State, 133 Ga. 427, 66 S. E. 159) in favor of the admissibility of material and relevant evidence in a criminal case, although obtained by the unlawful search of the defendant's person or premises after he had been illegally arrested; yet as Chief Judge Russell held a contrary opinion, which was sustained by quite a number of the decisions of this court (Hammock v. State, 1 Ga. App. 126, 58 S. E. 66; Hughes v. State, 2 Ga. App. 29, 58 S. E. 390; Stewart v. State, 2 Ga. App. 98, 58 S. E. 395; Gainer v. State, 2 Ga. App. 126, 58 S. E. 295; Sherman v. State, 2 Ga. App. 148, 58 S. E. 393; Sherman v. State, 2 Ga. App. 686, 58 S. E. 1122; Smith v. State, 3 Ga. App. 326, 59 S. E. 934; Davis v. State, 4 Ga. App. 318, 61 S. E. 404; Glover v. State, 4 Ga. App. 455, 61 S. E. 862; Jackson v. State, 7 Ga. App. 414, 66 S. E. 982; Wright v. State, 9 Ga. App. 266, 70 S. E. 1126; Underwood v. State, 13 Ga. App. 206, 78 S. E. 1103, and others, and as a constitutional question was involved, the majority of the court thought it best in view of the apparent conflict between these decisions of the two courts, to certify the question to the Supreme Court, so that it might be definitely and decisively settled by a specific and authoritative ruling from the highest judicatory of the state. The Supreme Court (all the Justices concurring), in Calhoun v. State, and Smith v. State, 87 S. E. 893, this term decided, held:

"(1) On the trial of a criminal case, incriminatory evidence which was taken from the person of the accused by one who had illegally arrested him, and who discovered it by search of his person while he was under illegal arrest, if relevant, is not inadmissible as contravening theconstitutional provision that 'no person shall be compelled to give testimony tending in any manner to criminate himself.' (a) The constitutional guaranty is not limited to the protection of a witness testifying in a case, (b) Evidence obtained by an illegal and unauthorized search of one's person is admissible against him, and does not violate this constitutional guaranty. (c) But if the accused be compelled to produce the incriminating evidence, the evidence will be rejected as being in the nature of an involuntary admission. (2) Articles taken from the person or premises of the accused, tending to establish his guilt of the offense for which he is charged, are admissible in evidence against him, notwithstanding the articles were discovered by an unlawful search and seizure; and this rule of evidence is not violative of the constitutional prohibition of unreasonable searches and seizures. The ruling in the case of Williams v. State, 100 Ga. 511 [28 S. E. 624, 39 L. R. A. 269], does not conflict with that of Evans v. State, 106 Ga. 519 [32 S. E. 659, 71 Am.' St. Rep. 2701. as is clearly pointed out in Duren v. Thom-asville, 125 Ga. 1 ."

The opinion of the court was as follows: "The Court of Appeals has requested instructions upon certain questions of law, relating to the admissibility of testimony, the nature of which will appear from the headnotes (which are intended as answers to the questions) and from the following discussion of them. As a general rule, courts will not concern themselves with the manner in which evidence is procured, if the evidence is otherwise admissible and of probative value. Williams v. State, 100 Ga. 511, 28 S. E. 624, 39 L. R. A 269; Sanders v. State, 113 Ga. 267, 38 S. E. 841; Jackson v. State, 118 Ga. 780, 45 S. E. 604. Rules of evidence exist to elicit truth. Irrelevancies which can have no other purpose than to cloud the real issues, or to confuse the investigation in hand for the sake of a matter that is not a part of it, as a matter both of practical expediency and of attaining the truth, have no place in a trial. The questions propounded by the Court of Appeals concern limitations on the general rule because of the constitutional restraint against compulsion of a person to give testimony tending to criminate himself, and the constitutional prohibition against unreasonable searches and seizures.

"We will first consider, as bearing on the general rule, the constitutional mandate that 'no person shall be compelled to give testimony tending in any manner to criminate himself.' Its prototype is found in the maxim of the common law, 'nemo tenere seipsum accusare, ' that no man is bound to accuse himself of any crime or to furnish any evidence to convict himself of any crime, and this was brought by our ancestors to America as a part of their birthright. Marshall v. Riley, 7 Ga. 367, 370. This maxim has been described as the 'expression of the unwritten common-law rights which had come to be recognized in England in revolt against the thumbscrew and rack of early days.' Thornton v. State, 117 Wis. 338, 93 N. W. 1107. 98 Am. St. Rep. 924. The privilege against self-incrimination has been uniformly construed by the courts as giving the citizen protection as broad as that afforded by the common-law principle from which it is derived. State v. Davis, 108 Mo. 666, 18 S. W. 894, 32 Am. St. Rep. 640; Shields v. State, 104 Ala. 35, 16 South. 85, 53 Am. St. Rep. 17. The constitutional guaranty protects one from being compelled to furnish evidence against himself, either in the form of oral confessions or incriminating admissions of an involuntary character, or of doing an act against his will which is incriminating in its nature. Day v. State, 63 Ga. 667; ...