3 Ga. App. 146 | Ga. Ct. App. | 1907
King Jenkins was convicted of the crime of assault with intent to murder, on substantially the following evidence : On December 28, 1906, Pressley and McIntyre, two policemen of the city of Valdosta, while on duty, heard the report of firecrackers from the direction of a ne'gro barroom. They went to
There was no evidence of a city ordinance forbidding the shooting or firing of crackers, and only the officer’s statement that there was such ordinance. We do not think the existence of such ordinance material, under the State’s evidence that the arrest was not for a violation of any ordinance, but because of “impudent” talk to the arresting officer. The defendant relied for his defense upon the facts proved by the State, that he had committed no offense either against the State or city, and that there was an attempt to arrest him without a warrant; claiming that he shot in resistance to this illegal arrest, in which both officers participated, and that he used no more force than was necessary to resist such illegal arrest and.clubbing, as he had a legal right to do. The theory of the prosecution was, that the defendant drew a pistol from his person, where he had it concealed, and was attempting to shoot Pressley with it; that both acts were offenses against the law, and McIntyre was justifiable, under these circumstances, in “laying his hands on the pistol,” and in preventing the shooting of his brother officer; and that this being justifiable, the defendant’s act in shooting him amounted to an assault with intent to murder.
1. The law of arrest without a warrant has been so clearly and exhaustively enunciated by Mr. Justice Evans in Porter v. State, 124 Ga. 297 (52 S. E. 283, 2 L. R. A. (N. S.) 730), as to make any further discussion of the subject unnecessary and profitless. It must be conceded that the arrest or attempted arrest of the defendant by the policeman Pressley was unauthorized and illegal. While “impudence” is sometimes sufficient provocation to anger, it can never furnish justification to an officer of the law for depriving a citizen of his sacred right of liberty. If, in resisting such illegal arrest- by Pressley, the defendant had shot and killed him, his offense would not have been more than manslaughter. Where an officer attempts illegally to arrest a person, and such attempt is resisted, and the officer is killed in the attempt, the
2. The State contended that the arrest of the defendant for a violation of a city ordinance, without a warrant, was legal, because there was no provision in the city charter for the issuance of warrants for violations of municipal ordinances. The court permitted the introduction of evidence to show that there was no such provision in the charter, and, in his charge, instructed the jury that they might consider this omission in the charter, in connection with the circumstances surrounding the arrest, in determining whether the arrest of the defendant was illegal. The testimony on this subject was admitted over, the objection of the defendant, and its admission is one of the errors assigned. The admission of this testimony was erroneous, for two reasons: first, it was not relevant to the issues, it not being claimed that the defendant had violated any city ordinance, or that his arrest was for any violation or suspected violation of any ordinance; and •secondly, the fact that the charter of the city did not authorize a warrant for the violation of a city ordinance was a matter which .neither the jury nor the court could properly consider in determin
3. If the arrest or attempted arrest by officer Pressley was-wholly unwarranted and illegal, and the defendant, under the law, had the right to resist by the use of necessary preventive force, and if the killing of this officer by him in the exercise of such necessary preventive force could not have been a greater offense than voluntary manslaughter, the question next arises as to his rights, under the facts, in shooting officer McIntyre. If when McIntyre came into the barroom he saw his comrade engaged in a struggle with the defendant, “who had a pistol in his hand and was endeavoring to shoot the officer,” it was his duty to interfere and prevent the successful use of the pistol, without regard to the merits of the difficulty between Pressley and the defendant. McIntyre required no warrant to arrest the defendant; for apparently some offense was about to be committed in his presence. If, however, the defendant, at the time he shot McIntyre, believed, and the facts as they then appeared to him reasonably justified his belief, that McIntyre was assisting Pressley in accomplishing his illegal arrest, he would have had the same right of resistance to the apparently unlawful act of McIntyre that he had to the actually unlawful conduct of Pressley. This theory of the defense arose from
5. The 15th ground in the motion for new trial complains of the following charge: “If you believe that it would have been voluntary manslaughter instead of murder, why then the defendant could not be convicted of an assault with intent to murder, but you would inquire whether or not it would have been an assault and battery, 'or shooting at another not in his own defense. Then you will inquire, if it would have been voluntary manslaughter, whether you will find him guilty of shooting at another, or an assault with intent to murder.” The error in the latter part of this charge is so palpable that it suggests an ellipsis; but we must decide from the record, and it is manifest that it was erroneous to leave it optional with the jury to find the defendant guilty of assault with intent to murder, or of shooting at another not in self-defense, although they might have concluded that the offense would have been manslaughter if death had resulted. In this event, the only legal verdict would have been shooting at another, as defined in the Penal Code, §113, oxe assault and battery.
For the reasons stated, we think the court should have granted a new trial. Judgment reversed.