Heimer v. State

85 S.E. 821, 16 Ga. App. 588, 1915 Ga. App. LEXIS 140

• Court: Court of Appeals of Georgia
• Decided: July 3, 1915
• Docket: 6096
• Status: Published

Opinions

Russell, C. J.

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 illegally accused.” This is not subject to the exception that it put too much stress upon the wisdom of the prohibition law of Georgia, or tended to impress the jury with the importance of the ease. Special reference to the importance or policy of the criminal statute, for a violation of which one is being prosecuted, may sometimes tend to prejudice the rights of the accused, and the practice is not to be commended, but in the present case it is not made to appear that this charge was not called for and necessary on account of improper argument of counsel, or for some other reason not appearing in the record. But whether such a reason existed or not, this excerpt, when considered in the light of the charge as a whole, was not legally erroneous.

Decided July 3, 1915.

Accusation of misdemeanor; from city court of Macon — Judge Hodges. October 26, 1914.

John B. Cooper, for plaintiff in error. John P. Boss, solicitor-general, contra.

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.