16 Ga. App. 588 | Ga. Ct. App. | 1915
Lead Opinion
1. “Evidence obtained by the illegal seizure and search of a defendant’s person, which compels him to incriminate himself, is inadmissible against him. But incriminating facts discovered by another from an illegal search of. the property or premises of the defendant are admissible against him.” Warren v. State, 6 Ga. App. 18 (64 S. E. 111); Hughes v. State, 2 Ga. App. 29 (58 S. E. 390); Glover v. State, 4 Ga. App. 455 (61 S. E. 862); Croy v. State, 4 Ga. App. 456 (61 S. E. 848); Rogers v. State, 4 Ga. App. 691 (62 S. E. 96); Williams v. State, 100 Ga. 511 (28 S. E. 624, 39 L. R. A. 269); Duren v. Thomasville, 125 Ga. 1 (53 S. E. 814). In the present case the defendant was not even present at the time of the alleged illegal search and when the facts testified about were discovered.
2. The exception taken to the admission of testimony as to facts discovered in an upstairs room of the building occupied by the defendant is not meritorious. From the fact that the defendant’s employee, who was in charge of his business, produced and voluntarily surrendered to the searchers a key to the upstairs room, connected by a stairway with the lower floor of the building occupied by defendant, the jury would have been authorized to find that this room was a place wherein a part of his business was conducted, and therefore was a part of his place of business.
3. The instructions given the jury relative to the alleged improper argument by State’s counsel fully cured whatever improper effect, if any, it might have had upon the jury.
4. The court charged the jury as follows: “You, as jurors, and myself as judge, are not concerned in any way with the wisdom or policy of the General Assembly in passing what is known as the prohibition law. You and I belong to a separate-branch of the government; we belong to the judicial branch, whose duty it is to enforce the law as we find it written in the books; and by ‘enforcing the law’ I mean not only is it the duty of the court and jury to convict the guilty when legally accused, but just as well to acquit the innocent when improperly and
5. The charge of the court in regard to the prima facie inference of guilt raised by the showing that the defendant had in his possession an internal revenue special-tax receipt, as required by section 3239 of the Revised Statutes of the United States, was in accord with the act of the General Assembly approved August 21, 1911 (Acts 1911, p. 181), and was not erroneous.
6. After a careful study of the record in this ease, this court is of the opinion that there is no substantial merit in any of the exceptions taken to the charge of the court, or in the admission of the testimony to which objections were interposed. The evidence fully warranted the verdict, and the court did not err in overruling the motion for a new trial.
Judgment affirmed.
Concurrence Opinion
concurring specially. I join in the affirmance of the judgment in this ease, but I can not agree with the assumption in the first headnote, that the admission of evidence obtained by an illegal search and seizure of a defendant’s person is compelling him to give evidence tending to criminate himself. Neither can I agree that there is, or should be, any distinction between the sacredness of the constitutional inhibitions against an illegal search and seizure of one’s person and an unlawful invasion and illegal search of his premises. Both of these rights are equally inviolable, and in my opinion, neither of them, directly or indirectly, prevents the admission of material evidence in a criminal case, although obtained through an illegal search and seizure by an individual, whether a private citizen or an officer of the law. In Drake v. State, 75 Ga. 413, where the shirt and drawers of the accused were taken off his person and admitted in evidence against him, over his objection that it was compelling him to give evidence against him
In my humble opinion, the ruling in the Williams case, supra, having been made by a full bench and never having been overruled or modified, but, on the contrary, having been cited approvingly many times by the Supreme Court and by this court, should control this court, rather than subsequent decisions of its own or of the
Note. A writ of error from the Supreme Court of the United States was granted in this case.