13 S.E.2d 770 | Ga. | 1941
1. The evidence on a trial for murder would have authorized the jury to apply the principle that if a person kill another to avoid an unlawful arrest, and not in a spirit of revenge, the homicide is generally manslaughter instead of murder. An instruction by the court which ignored and excluded this principle was error requiring a new trial.
2. Whether other errors pointed out in the decision would require a reversal of the refusal of a new trial is not determined.
2. The charge on voluntary manslaughter was subject to the criticism that it commingled therewith the law of justifiable homicide based on reasonable fears. Cargile v. State,
3. Ground 5 of the motion for new trial complained of the following charge: "I charge you further that every person has the right to resist an illegal arrest when attempted by officers or a private individual, and in resisting may use such force as is necessary for the purpose and no more. That is, a citizen being unlawfully arrested has the right to resist force with force proportioned to that being used in arresting and detaining him. If you find from the evidence, including the defendant's statement, in this case that the deceased was an officer, a bailiff, and without warrant or legal authority, or that he was only a private individual, who sought to arrest the defendant, Perry McIntosh, then Perry McIntosh would have had the right to resist such arrest with force proportioned to that being used by the officer, and no more. If you find that he did this, and the killing was without malice then he would not be guilty of any offense, and you should acquit him." This charge was erroneous, as contended, because of the qualification "and the killing was without malice." If the other stated conditions existed, the defendant should have been acquitted, regardless of the question of malice. Golden v. State,
4. The court erred in charging the jury that if the deceased was attempting to arrest the defendant unlawfully, "without using *738
any force," and the defendant shot and killed him, the defendant would be guilty of murder, unless he was acting under the fears of a reasonable man as to certain matters stated. The charge as thus given ignored and excluded the principle that if a person kill another to avoid an illegal arrest, and not in a spirit of revenge, the homicide is generally manslaughter, and not murder.Porter v. State,
5. Ground 4 of the motion for a new trial is expressly abandoned. Ground 6 refers to an occurrence that probably will not happen on another trial, and need not be passed on.
6. For the error indicated in paragraph 4 above, the court erred in overruling the motion for new trial. Since the judgment must be reversed for this reason, it is not determined whether the errors pointed out in paragraphs 1, 2, and 3 would by themselves afford cause for a new trial.
Judgment reversed. All the Justices concur.