7 Ga. App. 660 | Ga. Ct. App. | 1910
Maughon was jointly indicted with Kelly Elrod for murder, and on his separate trial was convicted of involuntary manslaughter in the commission of an unlawful act. His motion for a new trial being overruled, he brings error. The evidence, briefly stated, is as follows: Criminal warrants had been placed in the hands of the sheriff of the county for the arrest of two brothers, Zack and Jake Cleghorn. The evidence is silent as to the offense, or offenses, for which these warrants were issued. The defendant Maughon was a constable or bailiff, and, on Monday
Maughon claimed that he did not shoot at all. He said that the deceased came to the door in response to his tap, and he asked him. if that was not Mr. Cleghorn, and he replied, “Who are you?” “I said, ‘Maughon is my name/ and I took hold of him with my left hand and said, ‘Consider yourself under arrest, Mr.. Cleghorn.’' He then gave me a shove, and we went off of the veranda together,, and I still held him by the arm. As I arose he struck me on the side of the face with his fist, and knocked me to my knees. As I
We would not disturb the verdict if, after a most careful examination of the evidence, we thought there was any fact or circumstance upon which it could have been based. The evidence for the State, taken at its strongest, if it was the truth, demanded a verdict for murder. This evidence contains no suggestion of any assault made by the deceased upon the defendant, but shows that the deceased, while running away from the defendants and endeavoring to escape, was fired on from the rear by them, one of the shots proving fatal. The State, however, did not contend that the defendant Maughon fired either shot, but it did contend that the fatal shot was fired by the defendant Elrod, under the order and di
The judge of the trial court charged the jury as follows: “If you believe that the defendant and Elrod undertook, without a warrant, to arrest the deceased, and that he resisted the arrest and released himself from the custody of Maughon and began to run away from him, and, while thus running and when he was endeavoring to escape, Maughon ordered Elrod to shoot him, and Elrod, in response to this order, fired at the deceased and killed
Objection was made to the following charge of the court on the subject of arrest: “If the defendant Maughon went to where the deceased was spending the night, without a warrant, and then and there undertook to arrest the said deceased in the absence of any warrant or other lawful authority, he, the defendant, was acting illegally, and the deceased had the legal right to resist this illegal act, and to use, in resistance, as much force as was necessary to make resistance successful and to secure his successful escape.” As an abstract proposition of law, this charge is correct, but it was not applicable to the facts of this case, and was calculated to mislead the jury and to prejudice the defendant, especially to prejudice him when taken in connection with the instructions on the law of involuntary manslaughter in the commission of an unlawful act; for it was not denied that the defendant did not have in his actual possession a warrant, and the conclusion was inevitable, from the charge, that if he had no warrant, the attempted arrest was an illegal act, and that if the killing was the result of this illegal attempt to arrest, the defendant would be guilty of involuntary manslaughter in the commission of an unlawful act. In the first place, under the facts of this case, a warrant was not necessary for the arrest of the deceased. The defendant was a constable. He had previously arrested the deceased, who had escaped from his custody. He was then, a fugitive from arrest, and was actually endeavoring to escape when the arrest was attempted; and, under section 89 G of the Penal Code, an officer can arrest without a warrant “an offender who is endeavoring to escape.” This can be done even where the offense is less than a felony. Croom v. State, 85 Ga. 723 (11 S. E. 1035, 21 Am. St. R. 179). But we do not think that the question of the legality of the attempted arrest ,was at all material to the issue in this case. It was not material to the contention of the State, because that contention was that the deceased vsas fleeing from the defendants when he was shot; and whether he was fleeing from an arrest for a misdemeanor, legal or illegal, the killing would clearly have been murder or voluntary manslaughter. It was certainly not material to the defense; for the defendant contended, not that he was authorized to
Because of the two errors herein discussed, we think that the case was not properly submitted to the jury, and that the verdict for involuntary manslaughter in the commission of an unlawful act was wholly unsupported by any evidence, and a new trial should be granted. Judgment reversed.