Opinion
34804.
DECIDED SEPTEMBER 19, 1953.
Lottery. Before Judge Craigmiles. Thomasville City Court. June 8, 1953.
Titus, Altman Johnson, for plaintiff in error.
Marcus B. Calhoun, Solicitor, contra.
Where a defendant charged with maintaining a lottery was requested or ordered by the arresting officers to "hand over the other tickets," and he thereupon reached into his pocket without resistance or remonstrance and gave the officers the tickets, even though he was not under legal arrest at the time, his action in so doing was voluntary and not the result of coercion so as to make the introduction of the lottery tickets in evidence upon the trial of the case inadmissible on the ground that it violated the constitutional inhibition against self-incrimination.
DECIDED SEPTEMBER 19, 1953.
Herbert Grant was charged by accusation with operating and maintaining a lottery known as stock market, and was tried and convicted in the City Court of Thomasville. The evidence for the State was to the effect that two police officers, acting without a warrant, stopped the automobile in which the defendant was riding; that he got out of the car and dropped a package, which he attempted to kick under the car; that either the officer picked it up or he picked it up under the officer's instructions; that they took him to police headquarters and one of the witnesses then said, "Herbert, I want them other tickets you've got," whereupon the defendant reached into his pants pocket and took out another envelope which he handed the officer. Both packages contained slips of paper identified as lottery tickets.
The denial of the defendant's motion for new trial is assigned as error on the ground that the defendant was compelled to give evidence against himself, as contended in the special ground of his amended motion.
The specific assignment of error here is directed against the admission into evidence, over objection, of the lottery tickets which the defendant pulled from his pocket and handed over upon being ordered to do so by one of a group of police officers, several of whom were armed with pistols, the defendant having been apprehended and brought to police headquarters without a warrant under circumstances which made his arrest illegal. The constitutional immunity from being forced to self-crimination is one of the most cherished guarantees of our Bill of Rights. Even today, when, in the national scene, Congressional investigations of Communist activities have on occasion been brought to a stand-still because those with whom we have no patience continually take shelter under its broad protection, and even though justice is sometimes slowed as a result, there is no American who, for the sake of mere expediency, would part with so important and fundamental a part of our concept of government, involving, as it does, the sacredness of human rights. As was stated in Underwood v. State, 13 Ga. App. 206 ( 78 S.E. 1103): "Courts should liberally construe the constitutional provision against compelling the accused to be a witness against himself, and refuse to permit any first or doubtful steps which may invade his rights in this respect."
Nevertheless, although we are free with our lip service to these cherished precepts, the laws of this State, as construed by the courts, have crystallized by hard lines of demarcation what ought to be a fluid and living principle. Under existing Supreme Court cases, there is no doubt that the products of an unlawful search or seizure, reprehensible as it may be, may be used in evidence against the defendant in a criminal case, and if it is what one owns, wears, or has in his possession which witnesses against him, rather than what he is compelled to do, the evidence is admissible. Myers v. State, 97 Ga. 76 (6) ( 25 S.E. 252); Williams v. State, 100 Ga. 511 (1) ( 28 S.E. 624); Calhoun v. State, 144 Ga. 679 (1) ( 87 S.E. 893); Evans v. State, 106 Ga. 519 ( 32 S.E. 659); Dozier v. State, 107 Ga. 708 ( 33 S.E. 418); McIntyre v. State, 190 Ga. 872 ( 11 S.E.2d 5). It is also well settled by Georgia Supreme Court decisions that the element of coercion must be absolutely established. A request, command, or order to surrender that which will incriminate, where acceded to without "the utmost resistance" — even under circumstances where overpowering force is present and it is obvious that resistance would be futile — is treated as a "voluntary confession," and the evidence so handed over is admissible. Franklin v. State, 69 Ga. 36 (3) (47 Am. R. 748); Johns v. State, 178 Ga. 676 (1) ( 173 S.E. 917); Shepherd v. State, 203 Ga. 635 (3) ( 47 S.E.2d 860). Under the decisions in the last-mentioned cases, the defendant here must be deemed to have voluntarily surrendered the lottery tickets when he drew them out of his pocket and handed them over on being told by the police officers that they "wanted the other tickets." He was under an illegal arrest, he was outnumbered and unarmed, two or three of the police officers at least had pistols. Had he resisted, it is obvious that the evidence could have been forcibly obtained and that it would then have been admissible. No actual threat was made to him, yet, certainly, the circumstances themselves, without the aid of any overt gesture, would have constituted sufficient threat to the average man. The writer, speaking for himself alone, is not in accord with the decisions in the Franklin, Johns, and Shepherd cases, supra, and abides by them only because the Constitution and laws of this State require that the Court of Appeals conform to the decisions of the Supreme Court. It is the writer's opinion that decisions such as these keep gnawing away at the Bill of Rights, one paragraph, one section, one provision at a time, until finally there will be no such thing in this country. The writer is of the opinion that the courts of this State should revise their judicial attitude toward the Bill of Rights and restore it to the people whom it was originally designed to protect against the unauthorized and unwarranted acts of their public servants.
Under the decisions above cited, the trial court did not err in allowing the documentary evidence over objection and in thereafter denying the motion for new trial.
Judgment affirmed. Gardner, P.J., concurs, and Carlisle, J., concurs in the judgment.