Glaze v. State, 156 Ga. 807

Glaze v. State

156 Ga. 807 | Ga. | 1923

Hines, J.

(After stating the foregoing facts.)

1. The trial judge did- not err in admitting in evidence the *813ordinance of the Town of Center, over objection on the ground that there was a pencil interlineation of the language, “or under the influence of whisky,” it being shown that this interlineation was made before the ordinance had been adopted. This interlineation was not an unauthorized ex post facto alteration of this municipal law, but was its birthmark. Nor did the court err in admitting this evidence on the ground that it was irrelevant. It was pertinent to the issue whether the arrest of the defendant by the deceased town marshal was an illegal one which the defendant was justified in resisting, and the right to resist which might reduce the homicide from murder to manslaughter.

2. Did the court err in failing to charge the law of manslaughter? It is urged by counsel for the defendant that the arrest of the defendant by the deceased, who was the marshal of the Town of Center and the constable of the district in which the town is located, was illegal, and the requirement of a cash bond by the mayor was without authority of law; and that a homicide resulting from resistance to such illegal arrest and detention was manslaughter, and not murder. It is true that “ Generally to slay a person who, without authority of law, is seeking to make an arrest for a misdemeanor, where the motive of the slayer is merely to avoid an arrest, would be manslaughter and not murder.” Graham v. State, 143 Ga. 440, 446 (85 S. E. 328, Ann. Cas. 1917A, 595). But the arrest was not illegal. The town ordinance made it a municipal offense for one to be “under the influence of whisky calculating [calculated?] to disturb the peace of the citizens.” It is a State offense for any person to be and appear in an intoxicated condition on any public street or highway. Penal Code (1910), § 442. The defendant was violating this town ordinance and this State statute in the presence of this officer of the law. As town marshal he had the right to arrest the defendant for a violation in his presence of the town ordinance, without a warrant. As a constable he had the right to arrest the defendant for a violation in his presence of the State law, without a warrant. Penal Code (1910), § 917. So the arrest was not illegal because made without a warrant, as the offense was committed in the presence of the arresting officer. So the failure of the trial judge to charge upon the law of manslaughter was not error upon the theory that the arrest was illegal, and that the homicide was committed in resisting such *814arrest. If a person kill an officer to prevent the latter from lawfully arresting him in a lawful way, the crime is murder. Williford v. State, 121 Ga. 173 (48 S. E. 962).

Was the omission to charge the law of manslaughter error under the general facts of the case ? When the deceased first arrested the defendant, the latter resisted arrest and struck at the officer. After his arrest the officer agreed to take him to the officer’s home and keep him there until the other defendants could go to his brother-in-law at Homer and arrange a bond. The other defendants got in an automobile and started on this mission. The defendant jumped in the automobile and started oil. The deceased jumped upon the running-board of the car and grabbed at the defendant to prevent his escape. This officer was authorized to use necessary force to prevent the defendant’s escape. The defendant struck him twice in the breast with a stick. The deceased leaned over in the car, and the defendant with something in his hand struck the deceased again. The deceased then struck back, but sank and fell from the car unconscious, in which condition he remained until he died. The effort of the deceased to strike the defendant was not made until after the fatal blow was struck. 'Up to that time the deceased had made no actual assault upon the person of the defendant, had made no attempt to commit a serious personal injury on the defendant; and there were no other equivalent circumstances to justify the existence of passion in the breast of the defendant. Hnder these circumstances the court did not err in failing to charge the jury the law of manslaughter.

3. There was no evidence to establish the truth of the ground of the motion for new trial that one of the jurors was related within the prohibited degrees to the deceased.

4. There is evidence to support the verdict..

Judgment affirmed.

All the Justices concur.