Smalls v. State

99 Ga. 25 | Ga. | 1896

Lumpkin, Justice.

1. On the trial of the accused for the crime of murder, the court, over objection of counsel, admitted certain testimony-tending to show that immediately before the homicide the accused, being a fugitive from justice, charged with a felony, was out in a field heavily armed, and by his, conduct and movements manifesting an apparent defiance of the lawful authorities. This evidence consisted of the-statements of,a witness giving in detail the conduct and movements of the accused, indicating that he was on the-alert, evidently watching out for the officers of the law, and fully prepared and determined to resist any attempt to arrest him. The objection to this evidence was, that-these facts were not communicated to the deceased, who was one of a party who went out to arrest the accused.

The vitally controlling issue in the case was whether, in. committing the homicide, the accused was resisting a lawful attempt to arrest him, or in good faith making a defense against an unlawful assault upon himself, or what he honestly believed was such an assault. The motives of the accused were directly in issue, and any evidence fairly illustrating or throwing light upon the same was competent, as being explanatory of his conduct under the surrounding-circumstances. While the evidence in question obviously could not illustrate the conduct of the deceased, we can see how it might very properly and materially aid the jury iu determining the purpose with which, the accused fired the fatal shot. The question, in its essence, being as to which party in the encounter was the assailant, this evidence was certainly admissible to show acts or conduct on the part of the accused indicating that he entertained a previous intention to make the attack. Proof of the accused’s attitude of hostility, whether consisting of preparations or declarations, was pertinent as tending to show that he meditated an unlawful act of violence. In this connection, see Whart. Cr. Ev. (9th ed.) §757 and notes. The precise question there discussed is in regard to the admissibility of threats made by the deceased, but the reasoning is applicable to the present question.

2. The rule announced in the second head-note was fully discussed by the writer in the recent case of Harris & Mitchell v. Amoskcag Lumber Company, 97 Ga. 465.

3-6. In submitting to the jury the controlling issue in the case, the trial judge' — probably inadvertently — fell into the error of using language capable of the interpretation that if the accused actually knew that the persons who approached him were authorized to effect his arrest, he had no right to make any resistance, even though he might reasonably apprehend from their demonstrations that their real purpose was not to make an arrest, but to commit upon him an unlawful act of violence. It must be borne in mind that the theory of the defense was, that there was no honest intention to arrest, and that the accused shot to prevent what he regarded as a murderous attack upon himself. The charge, in effect, ignored this defense, by making the right of resistance on -the part of the accused depend upon whether he knew, or did not know, that the party of which the deceased was a member was authorized to take him into custody. The law upon this question is stated about as accurately as we can hope to put it'in the 4th and 5th head-notes. There were numerous requests to charge, the purpose of which was to have the theory relied ■on by tbe defense correctly submitted to tbe jury. In tbe main, these requests embodied propositions of law which were abstractly correct; but we do not think the court was bound to give them in charge, for the reason that, in some respects, they were not fairly adjusted to the case as presented by the evidence. They assumed that the firing by the accused which resulted in the homicide was done immediately upon the.approach of the deceased’s party, whereas the evidence on both sides shows that it happened some time after the deceased first appeared upon the scene, and after various changes in the relative positions of the parties had taken place. Even if the persons who sought to capture the accused were in fact the aggressors in the first instance, and by their violent demonstrations put the accused in reasonable fear that a felonious attack upon him was meditated, and thereupon there was a mutual encounter during which each party used deadly weapons, still, if a running fight ensued which continued until the deceased •was slain by the accused, under the peculiar facts of this case it would not necessarily follow that the homicide was justifiable. It was so only if a legal necessity to kill existed up to that time; otherwise, the homicide would be voluntary manslaughter, or even murder, if deliberately done, maliciously and in a spirit of revenge. Of course, if the accused was the original aggressor, intending to kill in ■order to prevent his arrest, the homicide was murder, pure .and simple.

Thus far, we have dealt with the persons forming the party to which the deceased belonged, without reference to their official character. It appears that some of them were policemen of the City .of Savannah, the deceased being himself such an officer. Irrespective of their authority, legally, to make arrests outside the corporate limits of the city, the fact that they wore the uniforms of officers was a circumstance which the jury might properly consider in reaching their determination as to the good faith of the accused relatively to his contention that he honestly believed the object of these persons was to do him violence, rather than to peaceably arrest him.

Judgment reversed.