7 Ga. App. 414 | Ga. Ct. App. | 1910
The defendant was convicted upon an accusation charging him with the offense of carrying a concealed weapon. He
We think the judge erred in refusing the defendant’s motion for a new trial. There are cases in which incriminating evidence secured by illegal search or seizure of the defendant’s person or property has been held admissible; but in each of these cases the evidence thus obtained was some fact which might be explained by the defendant. The circumstance was in the nature of an incriminatory admission. In the cases where the fact disclosed by illegal search and seizure itself establishes the whole case, and no other circumstance can palliate the offense or relieve the guilt
The case, we think, turns on the point whether the arrest of the defendant for burglary was illegal. As was said in the Smith case, supra, “No decision of our courts prohibits the admission of evidence obtained in pursuance of a- legal arrest.”
It is conceded that the arresting officer had no warrant, that the burglary was not committed in his presence, that the suspected offender was making- no effort to escape; and there was no evidence tending to show that there was likely to be a miscarriage of justice for the lack of an officer authorized to issue a warrant for the defendant’s arrest. Consequently there can be no question that the arrest was illegal. Therefore, when the arresting officer, after having seized the prisoner, forcibly went through his person and discovered that he was carrying a pistol concealed, it was not the defendant, but the arresting officer, who produced the evidence. The circumstances preclude any inference that the disclosure was voluntary. If it had been, the conviction could be supported, even though the defendant was illegally arrested. As such does not appear from the record, under the facts in this case our decision is controlled by the rulings in Hammock v. State, 1 Ga. App. 126 (58 S. E. 66), Hughes v. State, 2 Ga. App. 29 (58 S. E. 390), and Smith v. State, 3 Ga. App. 329 (59 S. E. 934).
Judgment reversed.