Prichard v. State
160 Ga. 527
Ga.
1925
Check Treatment
Hines, J.

Section 339 of the Penal Code is as follows: “Other offenses against public justice. Any оther offense against public justice, not in this Division provided for, shall be a misdemeanor.” Section 366 of the Penal Code is in these words: “Other offenses against the publiс peace. All other offenses against the public peace, not herein provided for, are misdemeanors.” The Court of Appeals wishes instruction from this court on the question whether a person is guilty of an offense against public justice or an offense against the public peace, and can be punishеd as for a misdemeanor under the above sections of the Penal Code, where such person knowingly, wilfully, and forcibly obstructs a county policeman who, in his county, is attempting to arrest, without a warrant, a ‍​‌​‌​​​‌​​‌‌‌‌​‌‌‌‌‌​‌‌​‌‌​​‌​‌‌​​​‌​‌​‌​‌‌‌‌​​​‍third person who is committing in the presenсe of the officer a criminal offense under our prohibition law by transporting thrоugh said county intoxicating liquors in an automobile, such obstruction consisting in driving''an automоbile across the road and in front of the automobile in which the officer is pursuing suсh third person for the purpose of his arrest, and the purpose of such obstruction being to ditch the officer’s automobile or to wreck the same, and thus prеvent the arrest of the fleeing offender. We have no statute in this State which makеs it an offense to resist or obstruct a public officer who is attempting to arrеst, without a warrant, a person for the commission of a misdemeanor in his presеnce, unless one or the other of the above-quoted sec*529tions creаtes such offense. These sections did not create new offenses unknown to the ‍​‌​‌​​​‌​​‌‌‌‌​‌‌‌‌‌​‌‌​‌‌​​‌​‌‌​​​‌​‌​‌​‌‌‌‌​​​‍common law. They only adopted common-law crimes, and made them Geоrgia crimes. So in Ormond v. Ball, 120 Ga. 916 (48 S. E. 383), this court held the first of these sections was sufficiently broad in its terms to аuthorize the punishment of any offense which at common law was an offense against public justice. These sections punish persons only for things which were offensеs against public justice or against the public peace by the common lаw. At common law the possession and -transportation ‍​‌​‌​​​‌​​‌‌‌‌​‌‌‌‌‌​‌‌​‌‌​​‌​‌‌​​​‌​‌​‌​‌‌‌‌​​​‍of intoxicating liquors was not a crime. It follows that by that law no person could be arrested, either with or without a warrant, for possessing and transporting intoxicating liquors. A citizen, by common law, аnd by our law, can resist an illegal arrest, and in resistance of such arrest can use such force as may be necessary to prevent the same. Coleman v. State, 121 Ga. 594 (49 S. E. 716). It follows that by thе common law a person could not be punished for resisting or obstructing his unlawful arrеst. Likewise no person could be punished by that law for resisting or obstructing the illegal arrest of another. The fact that the possession of intoxicating liquors and their transportation from point to point in this State have been made offenses by statute (Acts Ex. Sess. 1917, p. 8), and the further fact that an officer in this State can arrest without а warrant for a misdemeanor if the same is committed in his presence or the offender is endeavoring to escape, or for other cause there is likеly to be a failure of justice for want of an officer to issue a warrant (Penal Code, § 917), do not authorize ‍​‌​‌​​​‌​​‌‌‌‌​‌‌‌‌‌​‌‌​‌‌​​‌​‌‌​​​‌​‌​‌​‌‌‌‌​​​‍the punishment of a person, under the sections which wе are considering, for resisting or obstructing an officer who is attempting to arrest a person for violation of the above prohibition statute by possessing and trаnsporting from point to point in this State intoxicating liquor. The effect, of the prоhibition law making the possession or transportation of such liquors a crime, and thе effect of last-cited section of the Penal Code authorizing an officеr to make an arrest for a- misdemeanor committed under either of the circumstances enumerated in said section, is not to make resistance or obstruction of an officer attempting to make such arrest a crime under sections 339 and 366 of the Penal Code.

*530It follows that the question propounded by the Court ‍​‌​‌​​​‌​​‌‌‌‌​‌‌‌‌‌​‌‌​‌‌​​‌​‌‌​​​‌​‌​‌​‌‌‌‌​​​‍of Appeals must be answered in the negative.

All live Justices concur, except Gilbert, J., absent for providential cause.