4 Ga. App. 458 | Ga. Ct. App. | 1908
Lead Opinion
The defendant was convicted of manufacturing intoxicating liquor in violation of the general prohibition law of this State, approved August 6, 1907. (Acts of 1907, p. 81). It appears, from the evidence, that a respectable lady of Pulaski county and her husband had been assaulted by unknown parties. Naturally the excitement and indignation were general and intense. The defendant was a negro, and shortly before his arrest twonegroes, supposed to have been implicated in the assault, had been, lynched. The defendant knew this. As he was going along a road he was overtaken by a posse, and the two first men who overtoqk him were riding in a buggy. One jumped out on one side of the buggy and one on the other, one armed with a gun, while the other presented his pistol at the defendant and commanded him to halt.
It is clear to our minds that the evidence in this case does not warrant the conviction of the defendant, and that the court erred in overruling his motion for new trial. Outside of his confession, there is no evidence that the defendant ever manufactured any whisky, either for himself or in conjunction with Ike Wells. It is true that one of the witnesses testified that the defendant produced, at the request of the posse, a bottle of “Kennesaw,” which is testified to be the kind of whisky made from cane skimmings. But there is nothing to show that this bottle of whisky was made by the defendant, or by his aid, except his statement. We are of the opinion, for this reason, that the corpus delicti was not shown. It is unnecessary, however, for us to deal with this question further than in what is contained in the headnote.
We think the plaintiff in error is entitled to a new trial because the confession was not freely and voluntarily made. And if the confession is excluded, the verdict, being without evidence to support it, is contrary to law. It is true that the witnesses for the State testified that “everything was peaceable” and that the defendant seemed “unafraid.” Giving full credit to the witnesses for the State, we do not think that their opinion (for, from 'the nature of the case, the evidence of these witnesses could only be mere matter of opinion) that the defendant “seemed unafraid” throws as much light on the question whether the defendant confessed voluntarily, or through fear that he had manufactured whisky, as the fright-producing environments of the defendant and their
Judgment reversed.
Concurrence Opinion
concurring specialty. I find in the record sufficient circumstances to corroborate the confession, if it were held to be freely and voluntarity made. I doubt our right to overrule the finding of the jury, under the approval of the trial judge, that the confession was free and voluntary; still I am not so strongly impressed with this view as to justify me in dissenting from the judgment of my associates in granting a new trial on this ground.