Sark v. State

118 Ga. App. 529 (1968)

164 S.E.2d 266

SARK v. THE STATE.

43920.

Court of Appeals of Georgia.

Argued September 4, 1968.

Decided October 17, 1968.

*530 Billy L. Evans, for appellant.

Albert D. Mullis, Solicitor General, for appellee.

FELTON, Chief Judge.

1. The involuntary driving of a motor vehicle onto State scales pursuant to the provisions of Ga. L. 1960, pp. 1122, 1123 (Code Ann. § 68-406.2), prior to the enactment of Ga. L. 1968, 1968, p. 193, constitutes a compulsory giving of testimony tending to be self-incriminating, which is violative of the Constitution, Art. I, Sec. I, Par. VI (Code Ann. § 2-106; Const. of 1945). Aldrich v. State, 220 Ga. 132 (137 SE2d 463); Hackney v. State, 223 Ga. 802 (158 SE2d 239).

2. Where the defendant was not advised of his right not to drive onto the scales, his driving thereon at the request of a State Highway Department employee authorized to enforce the provisions of Code Ann. § 68-406.2 was involuntary. Escobedo v. Illinois, 378 U.S. 478 (84 SC 1758, 12 LE2d 977); Miranda v. Arizona, 384 U.S. 436 (86 SC 1602, 16 LE2d 694, 10 ALR3d 974).

3. The State employee's testimony as to the weight of the defendant's truck was, therefore, illegally obtained evidence, which was not admissible against the defendant. Hammock v. State, 1 Ga. App. 126 (2) (58 SE 66); Johnson v. State, 111 Ga. App. 298, 307 (2) (141 SE2d 574), and cit. The court erred in admitting said evidence over the defendant's objection and in its judgment overruling the motion for a new trial on the special ground complaining of the admission of said evidence.

Judgment reversed. Eberhardt and Whitman, JJ., concur.