965 | Ga. Ct. App. | May 7, 1908
The prosecutor, Williams, had advanced the defendant $10 on a contract to work for him. He learned that the defendant was at work at another place, and demanded of him the return of the $10. The defendant claimed that he did not have the money, and some words passed between them. One George Spann, who had also gone after the defendant and was trying to take him from Mr. Lowry’s place where he was at work, at the same time claiming that the defendant had signed up a contract with him, told the defendant that he would have to go with him and work out his contract with him, and the defendant had started to go with him, at the time Williams came up. The defendant (being, so far as appears from the evidence, alone with these two conflicting parties, each of whom claimed that he was under contract with him, and Williams insisting upon' the return of his money because Spann was about to carry him away) consented to be
If it plainly appeared that the defendant unreservedly consented to a search of his person, and the presence of the concealed pistol had been disclosed by him voluntarily, the judgment of the court finding him guilty would, of course, be the only judgment that could legally have been rendered. But it is perfectly plain, from the evidence in the record, that he was, to a certain extent, coerced by his surroundings into his agreement to be searched for the money. His consent, however, extended no further than this. This consent to be searched he had a right to withdraw; and it is undisputed, in the State’s own testimony, that so far as concerned the contents of his hand (which he had between his pants and his overalls, and which it was afterwards found contained the pistol), he did withdraw that consent. According to the testimony, he used every means in his power to keep concealed the hand containing the pistol, and it was only by the use of force and the jerking of his hand out that the evidence of his guilt of carrying a pistol concealed was made manifest. It can not be said that the presence of the pistol was voluntarily disclosed. The case, therefore, clearly comes under the rule which has heretofore several times been announced by this court and which is stated in the second headnote. The defendant could not be compelled to convict himself. We are all agreed, therefore, that the only evidence upon which the conviction of the defendant rests was illegal and inadmissible, and that if a timely objection to it had been offered, or if a motion had been made to rule it out, the evidence of the defendant’s possession of a concealed pistol on the occasion mentioned in the testimony should have been excluded. This is settled by the rul
The question then turns upon the effect to be given to, the fact that no objection to this alleged evidence was offered at the trial. The majority of the court is of the opinion that the defendant’s failure to object amounted to a waiver of its inadmissibility, and that, being thus admitted by the consent of the defendant himself, it is competent to authorize the conviction. For this reason (as there can be no doubt of the sufficiency of the evidence adduced on the part of the State if its probative value is conceded) the judgment of the judge of the city court must be affirmed. For myself, I am unable to concur in the judgment of affirmance. As there is not a particle of legal evidence to support the conviction, it is, in my opinion, unwarranted, and should be set aside, regardless of the fact that the defendant’s counsel did not formally object or move to rule it out.
It may be that the fact that the trial was had before the judge without a jury was the reason why no objection was offered to the testimony. The defendant’s counsel may have presumed that as it is the judge who must weigh the objection and give direction to the jury with reference thereto, he would, when trying the ease without a jury, sift for himself the legal testimony from the illegal. Be this as it may, it is as much the duty of counsel to object, when a case is being tried before the judge as court and jury, as it would be if a jury were trying the case. But in the opinion of the writer it was unnecessary for the defendant to object to the testimony, because, being absolutely illegal, it possessed no probative value, and, in the absence of any legal testimony, could not support a conviction. The fact that no objection to the testimony was made at the trial is immaterial here,, because the State introduced no other evidence than this, which possessed no probative value. I think our decision should be controlled by the ruling in Eastlick v. So. Ry. Co., 116 Ga. 50 (42 S.E. 499" court="Ga." date_filed="1902-07-24" href="https://app.midpage.ai/document/eastlick-v-southern-railway-co-5571951?utm_source=webapp" opinion_id="5571951">42 S. E. 499). The only testimony offered to support the conviction of the defendant being illegally obtained and inadmissible, a new trial should have been granted, even though on the trial before the judge without the intervention of a jury no formal objection to the evidence was interposed. “Testimony which is incompetent and inadmissible be