Opinion
33907.
DECIDED MARCH 10, 1952.
Lottery; from Thomas Superior Court — Judge Lilly. October 22, 1951.
Titus Altman, Chas. F. Johnson, for plaintiff in error.
J. B. Edwards, Solicitor-General, contra.
The provisions of the Constitution of Georgia (Code, Ann., § 2-106) against compelling an accused to give testimony tending in any manner to incriminate himself will be strictly construed by the court. In the instant case the evidence was procured by the officer compelling the defendant to produce a lottery ticket, and the court committed reversible error in not excluding such evidence from the consideration of the jury.
DECIDED MARCH 10, 1952.
The defendant was convicted in the Superior Court of Thomas County on a special presentment charging him and Charles Moton with operating a lottery, generally known as the "numbers game." He filed an amended motion for new trial, which was overruled, and he excepts to that judgment.
The State introduced one witness. The defendant introduced no witness, but made a statement in his own behalf. The State's evidence was produced by a witness, C. M. Dixon, who at the time of the arrest of the defendant was on the police force of the City of Thomasville, and who, prior to that time, had been a sheriff of Thomas County, Georgia. His evidence was substantially: He knew the defendant, and on March 29, 1951, saw him on Clay Street about 10 p. m. The defendant drove near where the witness was stationed. Charles Moton was driving the defendant's car. The car was stopped in front of a house. The witness was across the street when the car stopped. Grant was sitting in the car. The witness walked to the car and found that the defendant had lottery tickets and some money in his hand. The defendant was counting the money. The witness stood there approximately a minute, when the defendant "just wrung those tickets, tore them in two. I said, `Don't tear those tickets in two,' and he tore them again; I said, `I told you not to tear those tickets in two.' He said, `Yes, sir, I didn't mean no harm.' I said, `You are doing what you want to do right on, don't tear those tickets any more.' The ticket I hold in my hand is just a part of a ticket; two parts are there. I asked Grant not to tear up the tickets, but he was determined to tear them up."
On cross-examination, the witness further testified: "At the time I entered the automobile I had a pistol on me. It was in my holster on my hip. Grant did not see it. As to how I managed to get the tickets away from Grant, I just told him not to tear them up. I did not tell him that if he tore these tickets up I would shoot him. I took the tickets out of his hand. I said, `Don't you tear up those papers.' I said, `If you tear them again I am going to get on you.' That is what I told him before I got possession of the tickets. When I told him this I possibly had my pistol on my hip. He didn't exactly hand them over to me. I got them out of his hand. He still didn't want to give them to me. After I made the statement to him that if he tore up those tickets again I would get on him, he turned them loose and let me have them. Before that he didn't let me have them at all, tore them in two before he did that. He was inclined to act in a way persisting in an attitude that he was not going to turn them over to me."
"Q. But when you told him that if he tore those tickets that you would get on him, and you had your pistol on your hip and your hand on your pistol, then he turned them over to you? A. I didn't ever threaten to shoot him or say I was going to shoot him, but I didn't mean for him to keep on doing what I asked him not to do. When I told him I would get on him I put my hand on my pistol. I did that to keep him from tearing those tickets all to pieces. Q. Then, as a matter of fact, you conducted and forced this man to let you have those tickets? A. He certainly didn't walk up and give them to me. No, sir. Not freely and voluntarily. He didn't just put out his hand and say, `here, take them.' When I reached out my hand to take them he let me have them."
The witness explained about the tickets and the manner in which the game was played, including the statement that a player had one chance in a hundred to win. He had no warrant for the arrest of Grant (the defendant), and had not seen Grant committing any crime in his presence. He did not have any search warrant. After receiving the tickets, he went through the defendant's pockets and found $9.18. The witness further testified: "Q. What I want you to tell me is this — you made that man turn over those papers to you didn't you? You were determined that you were going to have them? A. Yes, sir, I made him turn them over to me; that was my business there. At that time I had my pistol on my hip."
1. We will not discuss the general grounds, since the case may be tried again, and we do not know what the evidence might be.
2. Special grounds 1, 5, 6, and 7 assigned error on a portion of the charge of the court. In setting out this charge as error, it is contended that the judge erred in quoting the indictment in full because, after he read certain portions of the indictment, he charged, in immediate sequence, other words in the indictment as follows: "And did possess certain Boleta tickets, numbers tickets, bug tickets." This ground shows that, in immediate sequence after reading the indictment, the court said: "However, I charge you that mere possession of lottery tickets is not sufficient." It is contended that this charge was (a) not applicable or adjusted to the proven facts; (b) because the charge was not a correct statement of the law applicable to the facts; (c) because it was confusing and misleading, and did confuse and mislead the jury in reaching the verdict; (d) because the giving of such charge was prejudicial; (e) because there was no evidence offered to establish that the defendant committed the crime alleged, and there was no evidence to support the verdict; (f) that the alleged lottery tickets alone, there being no other evidence, were insufficient as a matter of law to support the conviction. We think it appropriate to state here that, so far as the sufficiency of the evidence is concerned, we are not considering this, since, as stated hereinabove, the case will be reversed on a special ground which we will hereinafter discuss. We will not, however, reverse the case on the assignment of error touching the charge hereinabove mentioned.
In special grounds 2 and 3, the defendant assigns error to the effect that the court erred because the evidence is sufficient as a matter of law to support the verdict, and he cites considerably from the brief of evidence including that portion touching the question of whether or not the conduct of the officer in procuring the tickets was compelling the witness to give evidence against himself. As stated in the portion of the opinion immediately preceding the discussion of these grounds, we are not here dealing with the sufficiency of the evidence, but with whether the conduct of the officer, in effect, forced the witness to produce evidence against himself in violation of his constitutional rights. In those special grounds, 2 and 3, error is assigned (a) because after the evidence had been offered concerning the method and manner and circumstances concerning the procurement of the tickets from the defendant by the police officer, as set forth in the statement of facts, counsel for the defendant made a timely objection, that the evidence as to the procurement of the tickets from the accused compelled the accused involuntarily to produce evidence against himself in violation of his constitutional rights under Code § 2-106 of the Constitution of Georgia, and as contained in Code § 38-417, which provide that "No person shall be compelled to give testimony tending in any manner to criminate himself." The court overruled this objection and permitted the evidence to go before the jury. In this regard we are clearly convinced that the court committed reversible error. There is no question in our mind but that counsel for the defendant used correctly and timely the procedure rules necessary to raise this question properly. See Rushin v. State, 63 Ga. App. 646 ( 11 S.E.2d 844). In Underwood v. State, 13 Ga. App. 206 ( 78 S.E. 1103), this court said: "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." It is clear from the record that the officer compelled the defendant to produce, against the will of the defendant, the lottery tickets in question. He did this by threat and by placing his hand on a pistol. The defendant did not voluntarily hand over to the officer this evidence, without which, under the facts of this record, the defendant could not have been convicted of the offense charged. We are not unmindful that, even though one is not under arrest, the officer may by force, by an unlawful search and an unlawful seizure, procure from a suspect evidence of the guilt of a crime, and the State may introduce evidence and the jury may convict upon it, but such an illegal act in obtaining such evidence is quite a different thing from the officer compelling the defendant to produce it. The former does not constitute a violation of the constitutional rights of the defendant, under the many decisions of our courts; but the method of forcing the defendant to produce this evidence violates his constitutional rights, in that it compels him to produce evidence to incriminate himself. See Day v. State, 63 Ga. 667; Calhoun v. State, 144 Ga. 679 ( 87 S.E. 893). It follows that the case must be reversed for the reasons set forth in these grounds.
Special ground 4, complaining of the introduction of the lottery tickets, is without merit.
Judgment reversed. Townsend and Carlisle, JJ., concur.