Calhoun v. State
87 S.E. 893
Ga.
1916
Check Treatment
Per Curiam.

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). Eules 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 tenetur 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. R. 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. R. 640); Shields *681v. State, 104 Ala. 35 (16 So. 85, 53 Am. St. R. 17). The constitutional guaranty protects one from being compelled to furnish evidence against-Jhimself, 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; Blackwell v. State, 67 Ga. 76 (44 Am. R. 717); Evans v. State, 106 Ga. 519 (32 S. E. 659, 71 Am. St. R. 276); Dozier v. State, 107 Ga. 708 (33 S. E. 418); Elder v. State, 143 Ga. 363 (85 S. E. 97). But the constitutional privilege against self-incrimination has no application to the unlawful acts of individuals. Lawrence v. State, 103 Md. 17 (63 Atl. 96); Sanders v. State, 113 Ga. 267 (38 S. E. 841); Drake v. State, 75 Ga. 413; Rusher v. State, 94 Ga. 363 (21 S. E. 593, 47 Am. St. R. 175); Goolsby v. State, 133 Ga. 427 (66 S. E.159). In Rusher v. State this court sustained a ruling of the trial court admitting in evidence against the accused, who was on trial for burglary, testimony showing that monej^, the fruit of his alleged crime, was found in a place of concealment, to which he had accompanied the State’s witnesses and in which he had informed them that it was secreted, although it appeared that his declaration disclosing the location of the money was not freely and voluntarily made. While the headnote in the case of Drake v. State, supra, restricts the application of the constitutional privilege to persons sworn as witnesses, an examination of the facts of the case will show that the actual ruling was that the constitutional privilege does not pre-1 vent the introduction in evidence or the exhibition to the jury of clothing or any other article taken from a person accused of crime, where they tend to show his guilt. In Evans v. State, supra, testimony to the effect that thé accused while not under legal arrest was compelled to put his hand in his pocket and surrender a pistol, thus disclosing that he was violating the law, was inadmissible on Ihe trial of such person for the offense of carrying a concealed weapon on that occasion. The evidence was excluded, not on the ground that the pistol was discovered after the accused was illegally arrested, but because he produced under compulsion the evidence of his guilt, and such act was in the nature of an involuntary confession. After examining the holding in the Evans case, this court held that evidence that a witness searched the person of the accused and discovered a concealed pistol on his person is *682not inadmissible because the witness may not have had a legal right to make the search. Springer v. State, 121 Ga. 155 (48 S. E. 907). The criterion is, who furnished or produced the evidentiary fact connecting the defendant with the crime? The true rule has been well stated by the Supreme Court of Alabama, as follows: “However unfair or illegal may be the methods by which evidence may be obtained in a criminal case, if relevant, it is admissible, if the accused is not compelled to do any act which criminates himself, or if a confession or admission is not extorted from him, or drawn from him by appliances to his hopes and fears.” Shields v. State, supra.

With respect to the effect of the constitutional provision against unreasonable searches and seizures on the general rule regarding the admissibility of incriminatory evidence discovered by a wrongful search of the defendant’s person or premises, the ruling in Williams v. Stale, supra, is conclusive. There the court held that it was not error, on the trial of a criminal case, to admit against the accused evidence showing that she had upon her person and about her premises articles the possession of which, though not in itself criminal, tended to establish her guilt of the offense with which she was charged, notwithstanding it appeared that the discovery of these articles was made by forcibly entering her house and there searching the same and her person without any warrant or authority of law. Although the search and seizure may have been unlawful, unwarranted, unreasonable, and reprehensible, this did not affect the admissibility of the evidence obtained as a result thereof. In the opinion a wealth of precedents from this and other courts is collated, and the discussion of the principle is so ex-, haustive that it is unnecessary to attempt to add to what is there said. The analysis of the case of Boyd v. U. S., 116 U. S. 616 (6 Sup. Ct. 524, 29 L. ed. 746), by the Justice who wrote the opinion is clear, and finds approval in the recent cases of Interstate Com. Com. v. Baird, 194 U. S. 25 (24 Sup. Ct. 563, 48 L. ed.. 860), Hale v. Henkel, 201 U. S. 43 (26 Sup. Ct. 370, 50 L. ed. 652), and Adams v. New York, 192 U. S. 585 (24 Sup. Ct. 372, 48 L. ed. 575). We think the rule was correctly applied in the excerpt from Duren v. Thomasville, 125 Ga. 1 (53 S. E. 814), embodied in the question by the Court of Appeals: “And, as clearly pointed out in the case of Dozier v. State, 107 Ga. 710, *683there is a vast difference between searching the premises of one suspected of crime and seizing any evidence of guilt, and compelling the person under suspicion to himself produce the evidence upon which he could be contacted. The criterion is, who furnished or produced the evidence ? If the person suspected is made to produce the incriminating evidence, it is inadmissible. Evans v. State, 106 Ga. 519. But if his person or belongings are searched by another, although without a vestige of authority, the evidence thus discovered may be used against him. Williams v. State. supra.”

All the Justices concur.