Opinion
30806.
DECIDED MARCH 16, 1945. REHEARING DENIED MARCH 27, 1945.
Certiorari; from Fulton superior court — Judge A. L. Etheridge. December 26, 1944.
John F. Echols, for plaintiff in error.
Lindley W. Camp, solicitor, E. E. Andrews, solicitor-general, Durwood T. Pye, contra.
1. The evidence sustains the verdict.
2. ( a) Evidence which otherwise may be inadmissible, in some instances becomes admissible in order to explain conduct which had been brought into question.
( b) Hope or fear which renders a confession inadmissible is that which some other person excites and not that hope or fear which originates in the defendant's own mind from seeds of his own planting.
DECIDED MARCH 16, 1945. REHEARING DENIED MARCH 27, 1945.
The defendant was convicted in the criminal court of Fulton County before a judge and a jury of selling at retail alcoholic spirits without first obtaining a license from the State Department of Revenue. He procured the sanction of a writ of certiorari. At the hearing the judge of the superior court overruled the certiorari. This judgment is assigned as error here.
M. L. Snelling, a witness for the State, testified substantially as follows: That he was a law-enforcement officer of the Revenue Department; that on April 23, 1944, a raid was made at Mr. Foster's home; that the officers found a quantity of whisky, not only at his home, but at two other places operated by him; and that the defendant claimed responsibility for the whisky.
D. W. Faircloth testified that he was a law-enforcement officer of the Department of Revenue; that he knew the defendant and that on or about April 23, 1944, in the City of Atlanta, he contacted the defendant and asked him for a pint of whisky; that the defendant referred the witness to the defendant's house on Alexander Street, off Marietta Street; that he contacted the defendant at the corner of Marietta and Alexander Streets; that the defendant told him to go to his house and tell a girl, "Ruth or Claire," that he sent him there for a pint of whisky; that he went to the defendant's house as thus directed by the defendant and procured from "Claire" two pints of Yellow Stone bonded whisky for $5.
L. Summer testified that he was an officer from the Revenue Department, Alcoholic Unit, and was present when the defendant was arrested and heard him make a statement; that he had in his possession three search warrants for the three houses searched; that the officers found three cases in the defendant's house, five cases in his mother's house, and three or four cases in the other house; that the defendant said all of the whisky was his, "not to lock up anyone but himself, that he was fully responsible for all three houses, he operated all three houses . . that all the liquor was his in all three houses;" that the defendant made this statement freely and voluntarily without any hope of reward or fear of punishment. The defendant had no license to retail liquors. He introduced no evidence and made no statement.
The defendant assigns error on the general grounds and on several special grounds, all of which we will deal with in the order presented.
1. Under the evidence as above set forth there is no merit in the assignments of error under the general grounds.
2. (a) The first special ground assigns error on the refusal to grant a mistrial because of the evidence given by the witness Faircloth to the following effect: "I know him [the defendant], know his name. He had a reputation for selling whisky." If it could be said, and we do not agree with that contention, that the statement of the court did not cure the alleged harm, still the evidence shows, under the whole record, that it was admissible. We make this statement because it appears from the record that when the remark was made by the witness he was under cross-examination. At this point counsel for the defendant was pressing the witness as to just why he approached a stranger on the streets for the purpose of buying liquor, whereupon the witness answered that he had been directed to the defendant, and the reason he approached him was because he had a reputation for selling whisky. To state it differently, the attorney for the defendant by his cross-examination brought into the picture the conduct of the officer. This being true, the evidence was admissible to explain the conduct of such officer. The answer of the witness served to explain his conduct and served to save his testimony from disrepute before the jury as to being unreasonable and unauthorized. Moreover, there will be found in Eden v. State, 43 Ga. App. 414 ( 159 S.E. 134), an expression of this court on this question, adverse to the defendant's contention.
(b) The remaining contention is that the statement of the defendant made to the officer to the effect that the defendant took the responsibility, and admitted that the whisky found was his, and for the officers not to lock up any of the other occupants of the houses, rendered such confession inadmissible. It is urged that this was not such an unconditional confession as would render it of probative value. There is no evidence in the record that the officers induced the defendant to make such confession. So far as the record goes this whole proposition originated in the defendant's own mind without being excited by anyone else. The Supreme Court, in dealing with this question, states that the hope or fear contemplated by the statute must be induced by another. A hope or fear which originates in the mind of the person making the confession and which originates from seeds of his own planting would not exclude a confession. Hill v. State, 148 Ga. 521 (4) ( 97 S.E. 442).
The court did not err in overruling and dismissing the certiorari for any of the reasons assigned.
Judgment affirmed. Broyles, C. J., and MacIntyre, J., concur.