Winston v. State

• Decision Date: 16 July 1949
• Docket Number: No. 32594.,32594.
• Citation: 79 Ga.App. 711,54 S.E.2d 354
• Parties: WINSTON. v. STATE.
• Court: Georgia Court of Appeals

79 Ga.App. 711

54 S.E.2d 354

WINSTON.

v.STATE.

No. 32594.

Court of Appeals of Georgia, Division No. 2.

July 16, 1949.

Syllabus by the Court.

1. (a) A correct statement by the court as to the testimony of a witness is not error in the absence of special circumstances tending to show such an unwarranted emphasis upon certain testimony as might confuse or prejudice the jurors.

(b) A statement by the trial court during the course of the trial of a case, considered by a party to be improper, cannot be complained of for the first time on motion for a new trial.

2. (a) Although evidence against a defendant in a criminal case may be obtained by peace officers in the course of an unlawful, unwarranted, unreasonable and reprehensible search of the home of the defendant in the course of a flagrant violation of the Fourth Amendment of the Federal Constitution and Article I, Section I, Paragraph XVI of the Constitution of the State of Georgia, this does not affect the admissibility of the evidence thus obtained. Williams v. State, 100 Ga. 511(1), 28 S.E. 624, 39 L.R.A. 269.

(b) Where evidence is forcibly taken from the home of a defendant in a criminal case without his consent and without requiring the defendant himself to produce it, this does not amount to compelling the defendant to give testimony tending in any manner to criminate him. Calhoun v. State, 144 Ga. 679(1), 87 S.E. 893; McIntyre v. State, 190 Ga. 872, 11 S.E.2d 5, 134 A.L.R. 813.

Error from City Court of La Grange; Henry Reeves, Judge.

Loyd Winston was convicted of illegal possession of whiskey, and he brings error. Judgment affirmed.

The plaintiff in error, Loyd Winston, herein referred to as defendant, was tried and convicted in the City Court of La Grange on an accusation charging him with the illegal possession of whisky. The testimony of the arresting officers was to the effect that they knocked on the door of the defendant's home, which was closed and shuttered; that the defendant let them in; that he was pretty drunk; that they had no search warrant; that they found on the floor a five gallon jug containing about one and one half gallons of white whisky, and that this container had no revenuestamps affixed thereon. The defendant's statement was to the effect that the officers broke into the house by tearing a latch off the door. The latch was introduced in evidence. A witness for the defendant also testified that shortly after the search he was in the defendant's home and saw the broken latch of the defendant's door lying on the floor. The defendant further stated that the jug contained no whisky except some "dreanings" in the bottom; that it had been given him as a water jug.

L. M. Wyatt, La Grange, Wyatt & Morgan, La Grange, for plaintiff in error.

E. W. Fleming, Sol., Hogansville, for defendant in error.

TOWN SEND, Judge (after stating the foregoing facts.)

1. Counsel for the defendant contends in the first ground of his amended motion for a new trial that the trial court erred in making an interpolation regarding the testimony of the state's witness that, "He testified it was one and a half gallons, " on the ground that this amounted to an expression of what the evidence in the case showed.

A correct statement by the court as to the testimony of a witness is not error in the absence of special circumstances tending to show such an unwarranted emphasis upon certain testimony as might confuse or prejudice the jurors. This statement does not fall within this category. Furthermore, it was not objected to at the time and, for this reason, it cannot be considered on review. See DeVere v. State, 45 Ga.App. 330 (4), 164 S.E. 485.

2. Ground two of the amended motion for a new trial contends that the court erred in overruling the defendant's motion to exclude evidence shown to have been obtained through an illegal search of his premises. The admission of evidence thus obtained is a violation of the search and seizure clause of the Federal and State Constitutions as contained in the Fourth Amendment to the Federal Constitution and Article I, Section I, Paragraph XVI of the Constitution of the State of Georgia, and that it also violates Article I, Section I, Paragraph VI of the State Constitution providing that no person shall be required to give testimony tending in any manner to criminate himself. Ground three complains of the failure of the trial court to give a charge on the inadmissibility of such evidence, and ground 4 complains of a charge that "Federal decisions do not apply in State cases." These grounds will be considered together.

Beginning with Williams v. State, 100 Ga. 511, 28 S.E. 624, 39 L.R.A. 269, the Supreme Court of this State has consistently held that although evidence may have been obtained by reason of most flagrant violations of the provisions of the Bills of Rights of the Federal and State Constitutions guaranteeing to the people of this nation and state the right to be secure in their persons, houses, papers and effects against unreasonable searches and seizures, evidence thus obtained is nevertheless admissible. See Williams v. State, supra; Groce v. State, 148 Ga. 520, 97 S.E. 525; Lester v. State, 155 Ga. 882, 118 S.E. 674; Springer v. State, 121 Ga. 155, 48 S.E. 907; Mclntyre v. State, 190 Ga. 872, 11 S.E.2d 5, 134 A.L.R. 813.

The evidence thus obtained by the arresting officers in the instant case was therefore admissible under the law of this state. Since the evidence is admissible, the trial court also properly omitted from his charge a statement expressing a contrary view, as complained of in ground 3 of the amended motion.

In Wolf v. Colorado, 1949, 69 S.Ct. 1359, it was held that the admission of evidence procured by the violation of the Fourth Amendment of the Federal Constitution in the making of an unlawful search on the part of state officers does not amount to the violation of the due process of law clause contained in the Fourteenth Amendment of the Federal Constitution in states where the evidence thus unlawfully obtained is admissible. Also, in Mclntyre v. State, supra, headnote 2, it is held as follows :

"The Fourth and Fifth Amendments to the constitution of the United States, containing similar provisions, have no application to the use of such evidence obtained by State officers, in State-court trials." It fol-lows that Federal decisions involving this question have no application in state courts, and it was therefore not error for the trial court to so charge.

Nor does the evidence thus unlawfully obtained violate Article I, Section I, Paragraph VI of the Constitution of the State of Georgia providing that no person shall be compelled to give testimony tending to criminate himself, since the defendant was not forced to furnish the evidence, but it was, on the contrary, forcibly...