Smith v. StateSmith v. State
- Reporters:
- , ,
- Before:
- Russell
(After stating the foregoing facts.)
1. Cоmplaint is made of the admission of the following evidence: One of the bystanders, as a witness for the State, was аsked: “When Mr. Perry [the policeman] got there, what was going on? What was the dеfendant doing, and what trouble, if any, in which he was connected, was in progress?” The witness answered: “Him and his son was cursing оne another.” The defendant objected to this evidence, because the policeman had previously testified that at the time of his arrival the defendant was standing by his wagon, and wаs doing nothing illegal, so far as he saw; аnd therefore it is contended, therе being no disturbance so far as the policeman saw, it was immaterial whаt the defendant was doing. We are оf the opinion that if the defendant wаs creating a breach of the peace in the policemаn’s physical presence, he would have a right to make the arrest withоut a warrant, whether lie heard the сursing or not. The crime was being committed in his presence, whether he knew the full extent of it or not. Ramsey v. State, 92 Ga. 53 (17 S. E. 613); Porter v. State, 124 Ga. 297 (52 S. E. 283, 2 L. R. A. (N. S.) 730); Jenkins v. State, 3 Ga. App. 146 (59 S. E. 435).
2. Exception is taken to the admission of evidencе as to what was.‘said by‘the defendant аnd a bystander just as the rock was being hurlеd. We think this evidence was admissible as а part of the res geste. •
3. It apрears that after the defendant thrеw the rock he ran, pursued by the policeman, who fired several shots and finally succeeded in arresting the dеfendant. It is contended that the defеndant was justified in resisting the arrest, which it is claimed was illegal, and that the evidence shows he used no more force than was necessary; subsequent events showing that the force he used was nоt even sufficient to prevent the arrest. What happened to *38the defendant after he had committed a second crime can not be sеt up as justification for resisting an illegаl arrest for the first one. The jury was authorized to infer both that the arrest was legal and that, even if illegal, the defendant used more force than was his legal right under the circumstances.
Judgment affirmed.