Underwood v. State

• Decision Date: 15 August 1913
• Docket Number: 4,943.
• Citation: 78 S.E. 1103,13 Ga.App. 206
• Parties: UNDERWOOD v. STATE.
• Court: Georgia Court of Appeals

78 S.E. 1103

13 Ga.App. 206

UNDERWOOD v. STATE.

No. 4,943.

Court of Appeals of Georgia

August 15, 1913

Syllabus by the Court.

"Courts should liberally construe the constitutional provision against compelling the accused to be a witness against himself, and refuse to permit any first or doubtful steps which may invade his rights in this respect."

(a) Where a person was arrested on suspicion of keeping on hand intoxicating liquors in his place of business, the arrest being made without a warrant, and, the officers, while holding him in illegal custody, violently seized his person and, against his utmost resistance, took from his pocket the keys to his iron safe, and with the keys unlocked the safe and found therein intoxicating liquors, testimony, on his trial for the offense of keeping intoxicating liquors on hand at his place of business, as to the finding of the liquors in his safe should have been excluded, because the evidence was wrongfully obtained by the officers, in criminal violation of the law, by an unlawful search and seizure following an unlawful arrest, and the accused was thus compelled to give evidence tending to criminate himself, in violation of the constitutional restriction on that subject.

Error from City Court of Americus; W. M. Harper, Judge.

C. E Underwood was convicted of keeping intoxicating liquors at his place of business, and brings error. Reversed.

C. R Winchester and L. J. Blalock, both of Americus, for plaintiff in error.

Zack Childers, Sol., of Americus, for the State.

HILL C.J. (after stating the facts as above).

The specific objection made to the admission of the testimony as to the finding of the liquor was that the evidence was obtained by the officers while the accused was under an illegal arrest and by means of a key forcibly taken from his person, and that, therefore, he was compelled to give testimony tending to criminate himself, in violation of the constitutional provision on that subject. This constitutional provision is in the following language: "No person shall be compelled to give testimony tending in any manner to criminate himself." Article 1, § 1, par. 6, of the Constitution of this state. This constitutional provision and the other of kindred import, that "the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated" (article 1, section 1, paragraph 16) had all the dignity of maxims in the earliest days of English history, and were brought, with other fundamental principles of the common-law system of England, by our ancestors to America as a part of their birthright. In other words, these constitutional restrictions are but 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. Marshall v. Riley, 7 Ga. 367; Thornton v. State, 117 Wis. 338, 93 N.W. 1107, 98 Am.St.Rep. 924. As to the application of these fundamental principles the decisions of the courts are in great conflict and in some confusion. Two distinct lines of interpretation have been announced by the courts of this country. One is a liberal construction of these constitutional guarantees in favor of the rights of the citizen, and the other is a literal and restricted construction, confining the application of the principle within very narrow limits. The latter construction may be stated generally as follows: "Though papers and other subjects of evidence may have been illegally taken from the possession of the party against whom they were offered, or otherwise unlawfully obtained, this is no valid objection to their admissibility, if they are pertinent to the issue. The court will not take notice how they were obtained, whether lawfully or unlawfully; nor will it form issues to determine that question." 1 Greenleaf on Evidence, § 245a. In equivalent phraseology this rule has been enunciated by the majority of the courts of final resort. It was said by the Supreme Court of Illinois, in the case of Gindrat v. People, 138 Ill. 103, 27 N.E. 1085, that courts in the administration of the criminal law are not accustomed to be oversensitive in regard to the sources from which evidence comes, and will avail themselves of all evidence that is competent and pertinent, regardless of how it was obtained. Adopting this technical construction, it is held by these courts that the provision relating to self-crimination must be strictly testimonial, in other words, that it is applicable to the accused only as a witness, and must be directed to a positive, overt act on the part of the accused personally, and does not include acts of other persons. One learned authority expresses this view of the rule as follows: "It seems to us an unfounded idea that the discoveries made by the officers and their assistants, in the execution of process, whether legal or illegal, or where they intrude upon a man's privacy without any legal warrant, are of the nature of admissions made under duress, or that it is evidence furnished by the party himself upon compulsion. The information thus acquired is not the admission of the party, nor evidence given by him, in any sense. The party has in his power certain mute witnesses, as they may be called, which he endeavors to keep out of sight, so that they may not disclose the facts he is desirous to conceal. By force or fraud access is gained to them, and they are examined to see what evidence they bear. That evidence is theirs, not their owners." State v. Flynn, 36 N.H. 64. Mr. Wigmore, in his treatise on Evidence, takes this view of these constitutional restrictions, citing many decisions in support of his contention, and combating the soundness of the decision of the Supreme Court of the United States announcing a contrary opinion, in the case of Boyd v. United States, 116 U.S. 616, 6 S.Ct. 524, 29 L.Ed. 746. 4 Wigmore on Evidence, § § 2251-2270.

Liberal construction in favor of the rights of the citizen has been adopted by this court, beginning with the case of Hammock v. State, 1 Ga.App. 126, 58 S.E. 66, where it is held that: "When, by an unlawful search and seizure under an illegal arrest, a person is compelled by an officer of the law to furnish incriminating evidence against himself, such evidence is not admissible against him in a criminal prosecution." In the Hammock Case Judge Powell calls attention to the fact that the decisions of the Supreme Court of this state in the interpretation of these constitutional restrictions are not in absolute harmony, and declares "If we were untrammeled by some of these decisions, our own views of the sacred character of these constitutional rights of the private citizen might induce us to extend the rule further than we do." He then endeavors to harmonize the apparently conflicting decisions of the Supreme Court, and concludes with the statement that the ruling in the Hammock Case is not in conflict with any of the decisions of that court. Without extending the discussion along this line, and omitting any effort to harmonize conflicting decisions, we put our opinion in the present case, under the facts, on the decisions in Day v. State, 63 Ga. 668, Evans v. State, 106 Ga. 519, 32 S.E. 659, 71 Am.St.Rep. 276, and Hammock v. State, supra. In the Day Case it was held that: "Evidence that a witness forcibly placed defendant's foot in certain tracks near the scene of the burglary, and that they were of the same size, is not admissible. A defendant cannot be compelled to criminate himself by acts or words." Chief Justice Warner, as was his custom, briefly disposed of the question...