13 Ga. App. 206 | Ga. Ct. App. | 1913
Underwood was convicted of a violation of the Penal Code, § 426, in keeping on hand at his place of business intoxicating liquors, and, his motion for a new trial having been overruled, he excepted. From the evidence it appears that the chief of police, with other policemen, went to the place of business of the accused, without a warrant, and instituted a search for intoxicants. While this search was in progress the accused closed and locked his iron safe. This aroused the suspicion of the chief of police, and he ordered the accused to open the safe for inspection. The accused refused to do so, and the officer thereupon, without a warrant, arrested him on suspicion, and took him to the police barracks, leaving a policeman in charge of the storehouse. At the police barracks, in the presence of the solicitor of the city court and of several policemen, the chief ordered the prisoner to give up his keys to the safe. Again the accused refused to do so, and thereupon the officers caught hold of him, and, forcibly and against his will and protest, overcoming by violence his resistance, took the keys from his pocket. Leaving the accused in custody at the barracks, the chief hurried to the storehouse, securing on his way the services of a locksmith, and ordered the locksmith to turn the combination of the safe; and when this was done the officer unlocked the safe with the keys he had' secured from the person of the accused for that purpose, and found in it 114 pints of whisky, which he seized. Based upon the evidence thus obtained, a warrant was sworn out against the accused, and an accusation was filed, on which he was tried and convicted. On the trial the accused objected to the introduction of the testimony as to the finding of the liquor in his safe; and the admitting of this testimony is the subject of the .controlling assignment of error.
The specific objection made to the admission of the testimony as
Liberal construction in favor of the rights of the citizen has been adopted by this court, beginning with the ease of Hammock v. State, 1 Ga. App. 126 (58 S. E. 66), where it is held that, “When by an unlawful search and seizure, under an illegal arrest, a person is compelled by an officer of the law to furnish incriminating evidence against himself, such evidence is not admissible against him in a criminal prosecution.” In the Hammock case Judge Powell calls attention to the fact that the decisions of the Supreme Court of this State, in the interpretation of these constitutional restrictions, are not in absolute harmony, and declares: “If we were untrammeled by some of these decisions, our own views of the sacred char
In our opinion there is no substantial difference in the facts of the present case and those of the three cases above relied upon. Here the accused was arrested without a warrant, on suspicion. His premises were searched without a warrant, on suspicion. When he refused to open his safe at the command of the officer, he was arrested and taken to the police barracks. His custody was wholly illegal, and the officer was guilty of the offense of false imprisonment. When he reached the police barracks the chief of police and other officers again demanded of him his keys, which he declined to give up. The officers then forcibly took from him his keys, overcoming his utmost resistance. In other words, they committed an unpardonable trespass, for the purpose of finding evidence tending to incriminate him. In endeavoring to find evidence sufficient to establish the crime which they suspected he was guilty of, these officers of the law committed much graver offenses than the one of which they suspected the accused. He was suspected of keeping intoxicating liquors on hand at his place of business, an offense malum prohibitum. They illegally deprived him of his liberty, they searched his premises- illegally, they made an assault and battery upon his person, and, in so doing, they violently pulled down the constitutional bulwarks which protected him as a citizen, both as to his person and as to his property. The language of Chief Justice Bleckley in Rusher v. State, 94 Ga. 366 (21 S. E. 594, 47 Am. St. R. 175), is here pertinent: “The law ought to hold out no encouragement to violent and lawless men to commit crime for the
It is said by counsel for the State that the forcible taking of the keys from the accused was not material; that the discovery of the liquors in his storehouse was an independent fact, and admissible as such under the well-established law on that subject, and that the means adopted to make the discovery, or, in other words, to open the safe, were immaterial; but in the Day ease, supra, the correspondence of the tracks to the foot of the accused, and in the Dam-mock case, supra, and in the Evans case, supra, the discovery of a pistol on the person of the accused, were independent facts, but nevertheless they were held to be inadmissible, because the accused in these cases were under illegal arrest, and the evidence against them was obtained by compulsion) while they were held in unlawful custody. True, the officers might have gone to the safe and, without a warrant, broken it open; and in that event the testimony probably might have been admissible; but they did not pursue that course. They forced the accused to give up his keys. In other words, they forced him .to give into their possession the means of discovering the incriminating fact. It is wholly immaterial that they might have discovered the incriminating fact otherwise. We are simply dis
The two provisions of the constitution which we have been discussing appear in the fundamental law of every State of this Union, as well as in the Federal constitution. They are the sacred civil jewels which have come down to us from an English ancestry, forced from the unwilling hand of tyranny by the apostles of personal liberty and personal security. They are hallowed by the blood of a thousand struggles, and were stored away for safe-keeping in the casket of the constitution. It is infidelity to forget them; it is sacrilege to disregard them; it is despotic to trample upon them. They are given as a sacred trust into the keeping of the courts, who should with sleepless vigilance guard these priceless gifts of a free government. We hear and read much of the lawlessness of the people. One of the most dangerous manifestations of this evil is the lawlessness of the ministers of the law. This court knows and fully appreciates the delicate and difficult task of those who are charged with the duty of, detecting crime and apprehending criminals, and it will uphold them in the most vigilant legal discharge of all their duties, but it utterly repudiates the doctrine that these important duties can not be successfully performed without the use of illegal and despotic measures. It is not true that in the effort to detect crime and to punish the criminal, “the end justifies the means.” This is especially not true when the means adopted are violative of the very essence of constitutional free government. Neither the liberty of the citizen nor the sanctity of his home should be invaded without legal warrant. Suspicion is no substitute for a legal warrant, and the badge of authority is the emblem of law and order, and gives no right to the wearer to arrest without warrant, imprison without authority, and torture without mercy. Any
In the instant case, the only evidence of guilt having been discovered in the forcible violation of the constitutional provision that no man shall be compelled to give testimony that in any manner tends to criminate himself, the conviction was unlawful.
Judgment reversed.