Bentley v. State , 70 Ga. App. 490 ( 1944 )

1. The special grounds of the motion for new trial are without merit for the reasons set forth in the first division of the opinion.

2. The evidence sustained the verdict, and the court did not err in overruling the motion for new trial.

DECIDED JANUARY 6, 1944. Carrie L. Bentley was convicted of illegally transporting intoxicating liquors. Her motion for a new trial was overruled, and she excepted. The evidence, briefly stated, is substantially as follows: J. W. Beasley, a State trooper, testified that he and another trooper were driving on State Highway No. 10 between Washington and Thomson, in Wilkes County. The defendant was driving in the same direction ahead of them. The troopers noticed that the car the defendant was driving was being operated without a 1943 tag-strip on it. They decided to investigate concerning its lack of a tag. They drove around the car, blew the siren, and slowed down to about 10 or 15 miles per hour in an effort to block the defendant's car. She increased her speed, and passed the troopers on the shoulder of the road. The troopers again passed her in an effort to block her way, but the defendant passed them again, and increased her speed to 65 or 70 miles per hour. However, the troopers drove around the side of her car again and punctured a tire with a pistol shot. She did not stop then, but in the course of about a mile slowed down to 10 or 15 miles an hour, having two wheels on the shoulder of the road. The troopers again drove in front of the car and came to a stop. The defendant removed the keys from the ignition switch of her car and one of the troopers caught hold of a portion of the keys, and for about thirty or forty minutes endeavored to persuade her to surrender the keys to the trooper. Finally the sheriff, having been sent for by the trooper, appeared and the defendant voluntarily released the keys. the troopers, after unlocking the car found three cases of liquor in it: two cases of 4/5 quart bottles, and one case of pint containers. the defendant did not make any statement then except to request the troopers to make the case against her in a county other than Wilkes. They informed her that that was a matter for the court to determine. However, after the defendant and the car had been taken to the courthouse she made a statement freely and voluntarily in the presence of the sheriff, the two troopers, a Mr. Corley, and a Mr. Hopkins, that a friend had given her the whisky found in the trunk of the car. The troopers denied that they used any force to get the keys, and testified that the defendant did not object to them opening the trunk after she voluntarily surrendered the keys. Sheriff Lunceford testified that when he arrived at the place where the car was stopped, he found the troopers and the defendant there, and that he was present when the trunk was unlocked. Just as the sheriff got out of his car the troopers were raising the lid of the trunk. The sheriff observed the three cases of whisky, and inquired of the defendant: "Where did you get so much whisky?" The defendant replied, freely and voluntarily, without any inducement or hope of reward, or fear of punishment: "A friend gave it to me." The defendant made a statement in her behalf, the substance of which was that she and her seven-year-old daughter were travelling from Thomson, Georgia, on the night of the occurrence; that she was travelling 35 or 40 miles an hour, and observed the car coming behind her; that the car behind her appeared to her to be a truck, which drove close behind her car and dimmed the lights and slowed down; that she thought the vehicle approaching behind her would pass around her, but it did not, and began to blow a siren; she did not know who it was, and she speeded up her car hoping to keep in front of the vehicle behind her until she reached home. She had no idea it was patrolmen, and her little daughter began screaming, and got in front of the steering wheel; that she could not drive so well in this position; that the troopers passed her, and as she made an attempt to pass them at a turn in the road they started shooting; that not knowing who it was she endeavored to make her escape by running 75 or 80 miles per hour; that the troopers drove up beside her and cursed her several times, and told her to pull over, whereupon she informed them not to shot her tires, that she would stop when she got home; that they made her stop there; that she did not stop, however, until they shot her tires down and she bumped into their car; that trooper Beasley jumped out of his car and made the statement that he wished she was a man and snatched at the keys, and that when he did she reached for them and got them first, whereupon the trooper grabbed her hand and the keys. Beasley grabbed the holder, and the license pulled off the holder, and he grabbed her hand and twisted her arm to try to force her to turn the keys loose. She would not do so. They tussled, the keys passing from one of the defendant's hands to the other. The defendant kept holding on to the keys and Beasley kept telling her he wished she was a man. Finally, when they argued about the keys, and she would not give them to Beasley, the other trooper, Burton, who had been directing traffic, and who knew the defendant personally, requested that she give the keys to Beasley. She didn't do it because she was mad and she still held to the keys. When Sheriff Lunceford's car drove up, Beasley said to the defendant: "Here is the sheriff; now give me the keys." Beasley then snatched the keys out of her hand by main force; she did not give them to him voluntarily. After Beasley took the keys he unlocked the back of the car. The defendant stated that she knew nothing about any whisky being in the trunk of her car, and there was nothing said about any whisky at all to the sheriff or to anyone. 1. The general grounds of the motion for new trial are not argued by counsel for the defendant in error. There are three special grounds. Grounds 1 and 2 assign error because the court admitted in evidence, over objection of the defendant, the testimony of the witness Beasley (the substance of which we have set forth in the facts), for the reason that his testimony showed that the evidence against the defendant for illegally transporting liquor was obtained by forcibly taking the keys to the trunk of the car from her, and was thus rendered inadmissible; that the manner in which Beasley obtained the keys was in effect to force her to produce evidence against herself.

Special ground 3 assigns error because the court permitted the sheriff to testify concerning the confession of the defendant as set out in the statement of facts. This assignment of error is on the ground that since the defendant was forcibly compelled to produce the keys, which was the basis of the evidence against her, that any statement the defendant made concerning the evidence thus illegally procured was tainted at the source, and was impure and unsound as a foundation on which to establish a confession.

Thus it will be seen that the gist of the assignment of error on the special grounds of the motion is that the manner of procuring the testimony introduced against the defendant was in violation of her constitutional right as contained in art. 1, sec. 1, par. 6 of the constitution of Georgia to the following effect: "No person shall be compelled to give testimony tending in any manner to criminate himself." Therefore this is the question before us for determination. It can not very well be disputed that the State troopers were authorized to arrest the defendant for operating her motor-vehicle on the public highways of the State without first procuring a license tag. The Code, §§ 68-9908, 27-207, and 68-201, clearly establish their authority to do so. The principle now under consideration has been the subject of considerable discussion by our appellate courts. We will refer to a few comparatively recent decisions on the question. InCalhoun v. State, 144 Ga. 679 (87 S.E. 893), the Supreme Court said: "On the trial of a criminal case, incriminatory evidence which was taken from the person of the accused by one who had illegally arrested him, and who discovered it by search of his person while he was under illegal arrest, if relevant, is not inadmissible as contravening the constitutional provision that ``No person shall be compelled to give testimony, tending in any manner to criminate himself.'" Also, in McIntyre v.State, 190 Ga. 872 (11 S.E.2d 5, 134 A.L.R. 813), we find: "Under repeated decisions of this court, the admission in evidence in a State-court trial of articles taken from the defendant and his automobile by State officers without a search warrant would not violate art. 1, sec. 1, par. 6, or art. 1, sec. 1, par. 16, of the constitution of this State (Code, §§ 2-106, 2-116), prohibiting unreasonable searches and seizures and compulsory self-incrimination." It would seem from a reading of the above cases that it is immaterial whether the evidence was procured under an illegal custody. In a more recent case (Hyde v. State, 196 Ga. 475, 26 S.E.2d 744), the court had this to say: "A letter and envelope, containing incriminating admissions, contended by the State and denied by the defendant to be in the handwriting of the defendant who was on trial for the offense of murder, such envelope and letter having been taken from the person of the accused pursuant to a search while he was in legal custody, was properly admitted in evidence, it being a question for the jury to determine whether such handwriting thereon was that of the defendant, other admitted handwriting of the defendant also having been introduced in evidence for the purpose of comparison. Nor was it error to admit these papers in evidence over defendant's objection that they were taken from him without authority, and that he was thus required to give testimony against himself." Therefore it must be concluded, under the fact of this case, from the standpoint of the State's testimony, that the evidence was not inadmissible. Evans v. State, 106 Ga. 519 (3 S.E. 659, 71 Am. St. Rep. 276); Smith v. State, 17 Ga. App. 69 (88 S.E. 42); Calhoun v. State, 17 Ga. App. 705 (88 S.E. 586) Jackson v. State, 7 Ga. App. 414 (66 S.E. 982); Underwood v. State, 13 Ga. App. 206 (78 S.E. 1103), cited by plaintiff in error are distinguishable by their facts from the case at bar. They are not controlling if the testimony submitted by the State is accepted rather than the statement of the defendant given in her defense even if her statement is sufficient basis to hold that the testimony was illegally procured.

2. The evidence sustained the verdict, and the court did not err in overruling the motion for a new trial.

Judgment affirmed. Broyles, C. J., and MacIntyre, J.,concur.