Stephens v. State

Court of Appeals of Georgia

Stephens v. State

94 S.E. 69, 21 Ga. App. 151, 1917 Ga. App. LEXIS 485

CourtCourt of Appeals of Georgia

DecidedOctober 31, 1917

Docket9115

StatusPublished

Cited by4 cases

This text of 94 S.E. 69 (Stephens v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Stephens v. State, 94 S.E. 69, 21 Ga. App. 151, 1917 Ga. App. LEXIS 485 (Ga. Ct. App. 1917).

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Opinion

Harwell, J.

The defendant was convicted of having whisky in his possession. The testimony of the State’s witness shows that on the day alleged he saw the defendant alight from a train with a grip in his hand; that when that defendant saw the witness, who was a constable, the defendant dashed off; witness halloaed at him and pursued him; defendant dropped the grip and reached for a pistol, and witness shot at him three or four times; defendant got away, but witness recovered the grip and found whisky in it. The four bottles of whisky found in the grip were admitted in evidence. The defendant made no statement. We think this' evidence sufficient to warrant the conviction.

Í. The trial judge did not err in admitting the testimony showing the defendant’s possession of the whisky or in admitting in evidence the whisky found in his grip, over the objection -that it was obtained from him by a constable -without a warrant and [152]*152without authority of law, and was obtained by holding him up and forcing him to throw down the evidence which was in his possession. Smith v. State, 17 Ga. App. 693 (88 S. E. 43). Neither did the court err in refusing to charge the jury that, if the defendant objected to the arrest or to the disclosure of the whisky, this evidence would not be admissible against him, and that he should be acquitted. Smith v. State, supra.

3. The following charge was objected to as prejudicial to the defendant: “In all criminal trials the defendant has a right to make or not to make to the court and jury a statement in his own behalf. If the defendant sees fit to make no statement, he is acting within his rights, and such failure should not be considered for or against him.” We do not think this charge was subject to the criticism made. 'It is simply intended to warn the jury not to let the fact that the defendant made no statement influence them one way or the other; and is favorable to the defendant, rather than prejudicial. .

Judgment affirmed.

Broyles, P. J., and Bloodworth, J., concur.

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Harwell, J.

The defendant was convicted of having whisky in his possession. The testimony of the State’s witness shows that on the day alleged he saw the defendant alight from a train with a grip in his hand; that when that defendant saw the witness, who was a constable, the defendant dashed off; witness halloaed at him and pursued him; defendant dropped the grip and reached for a pistol, and witness shot at him three or four times; defendant got away, but witness recovered the grip and found whisky in it. The four bottles of whisky found in the grip were admitted in evidence. The defendant made no statement. We think this' evidence sufficient to warrant the conviction.

Í. The trial judge did not err in admitting the testimony showing the defendant’s possession of the whisky or in admitting in evidence the whisky found in his grip, over the objection -that it was obtained from him by a constable -without a warrant and [152]*152without authority of law, and was obtained by holding him up and forcing him to throw down the evidence which was in his possession. Smith v. State, 17 Ga. App. 693 (88 S. E. 43). Neither did the court err in refusing to charge the jury that, if the defendant objected to the arrest or to the disclosure of the whisky, this evidence would not be admissible against him, and that he should be acquitted. Smith v. State, supra.

3. The following charge was objected to as prejudicial to the defendant: “In all criminal trials the defendant has a right to make or not to make to the court and jury a statement in his own behalf. If the defendant sees fit to make no statement, he is acting within his rights, and such failure should not be considered for or against him.” We do not think this charge was subject to the criticism made. 'It is simply intended to warn the jury not to let the fact that the defendant made no statement influence them one way or the other; and is favorable to the defendant, rather than prejudicial. .

Judgment affirmed.

Broyles, P. J., and Bloodworth, J., concur.

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94 S.E. 69, 21 Ga. App. 151, 1917 Ga. App. LEXIS 485, Counsel Stack Legal Research, https://law.counselstack.com/opinion/stephens-v-state-gactapp-1917.

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