Terry M. Veit, appellant, was indicted on charges of arson, damaging government property (a police vehicle), simple battery, and reckless endangerment of his two-and-one-half-year-old daughter. Late on the afternoon of April 16, 1985, Ken Bruce, a Gordon County *754 volunteer fireman, saw smoke arising from the nearby residence of Veit. He notified the fire department and proceeded to Veit’s home, a camper to which an additional room had been constructed. He saw Veit and his daughter about 15-20 feet from the burning structure. Bruce asked Veit what happened and was told: “I just got tired of it . . . so I set fire to it.” Veit lay down on the ground, shouting: “Let it burn, let it burn.” Bruce smelled the odor of alcohol on Veit’s breath and asked him if anyone was in the building or if there was a gas tank. Veit said no one was in the building and there was a propane gas tank. Bruce asked him to step back from the burning structure for his safety and his child’s safety. Veit told him he “didn’t have no business on his damn property . . . [and] I had better get my damn a— off his property.” Bruce went to a neighbor’s house and asked his dispatcher to send a police officer to that location.
A fire engine and Deputy Sheriff Larry Miolen arrived a few minutes later. Bruce told Miolen there was a propane gas tank in the burning structure. Miolen saw Veit and his child close to the burning building and asked appellant “if he would, to step back from the residence and get the child away from there.” Veit moved back one step and Miolen again asked him to step back further. Veit told Miolen: “I’m not going any g— d— where . . . You s— of a b—. I’m not moving without a warrant.” Miolen testified that at that time Veit turned toward him, kicked him in the shin and spit in his face. Miolen placed Veit under arrest and took one arm and forced it behind his back. Veit was holding his child with the other arm. Veit was placed in the back seat of the police vehicle. Veit said Miolen forced his head into the door and cut it. Miolen saw Veit kicking the interior of the police car, the windows and the doors.
Miolen testified he asked Veit to move back from the fire because of his proximity to the structure and the fact that the propane gas tank could have exploded. Miolen had received specialist training involving fires in which gas tanks were involved and recently had been involved in a fire in which a propane gas tank had exploded and seriously injured a person. The deputy was of the opinion that the child was endangered because of her nearness to the burning structure which contained a propane gas tank.
Deputy Sheriff Patterson went with Miolen to transport Veit to the jail. Both officers testified that Veit threatened to “burn and bomb” their homes when they and their families were in them. Veit admitted he had been drinking and that he had told the fireman that he set the camper on fire. However, at trial he said he had only four beers, and it was an accident that caused his camper to catch on fire. He contended the volunteer fireman and the deputy sheriff had tried to take control of him on his private property and he resented that. He was of the opinion that there was no danger to himself or his *755 daughter as the propane gas tank was empty and open. He admitted he “might have kicked” Miolen, but denied spitting on him.
The trial court directed a verdict of acquittal on the count alleging damage to government property, and the jury acquitted appellant of the arson and reckless endangerment counts. Appellant brings this appeal from the jury verdict of guilty as to the counts alleging simple battery and terroristic threats. Held:
Appellant is appearing pro se and has disregarded the Rules of this court. He has listed nine “grounds” for appeal, and each “ground” contains from one to four enumerations of error. See
MacDonald v. MacDonald,
1. When viewed in the light favorable to the verdict, as an appellate court is required to do, the evidence recited above is sufficient to enable any rational trier of facts to find the existence of the offenses of simple battery and terroristic threats, beyond a reasonable doubt.
Jackson v. Virginia,
2. The thrust of appellant’s claim of ineffective assistance of counsel is that he was illegally arrested, his resistance to the illegal arrest was legally permissible but resulted in the charge of simple battery, and that all evidence following his illegal arrest was inadmissible, and his counsel was ineffective because he did not get such evidence excluded.
The threshold issue is whether a deputy sheriff is authorized to go upon private property and direct the owner to move back from a burning building, when the deputy has been made aware of the possibility of an explosion, and in his opinion the safety of a two-and-one-half-year-old child was unnecessarily endangered because of her proximity to the burning structure.
“ ‘All property is held subject to the police power of the State. . . . The due-process clauses are not intended to limit the right of the State to properly exercise the police power in the enhancement of public safety. . . . The police power has never been surrendered by the State . . . [and] to the exercise of police power all rights of natural persons and corporations are subject.’
Atlantic C.L.R. Co. v. State,
Hence, it is axiomatic that the State under its police power can enact laws in the interest of public health, safety, and welfare; also, that like powers can be granted to a municipality and a county.
Vinson v. Home Bldrs. Assn. of Atlanta,
It was the intent of the General Assembly that the office of sheriff be the basic law enforcement office of the counties of this state. OCGA § 15-16-1 (a). “The office of sheriff carries with it the duty to preserve the peace and protect the lives, persons, property, health, and morals of the people.”
Elder v. Camp,
Deputy Sheriff Miolen, after arriving at the scene of the fire in the instant case, and seeing it burning adjacent trees, and being reliably informed by a fireman that the burning structure contained a propane gas tank, and seeing a man who had the odor of alcohol on his breath, holding a two-and-one-half-year-old child, in proximity to the burning structure, was reasonably justified in assuming that the child was unnecessarily endangered, and that he was authorized as a peace officer of the county to request or direct that Veit remove himself and his child to a safer distance.
*757 The reasonable intrusion by the peace officer being justified and his authority to protect the lives, persons, property and health of the public being invoked, his direction to Veit to move away from his proximity to the burning building and possible explosion was lawful, and the jury was authorized to believe that the officer was assaulted prior to any arrest of the individual, or that the physical assault by kicking and spitting was not authorized resistance to an unlawful arrest.
A warrantless arrest is authorized if any crime is committed in an officer’s presence or within his immediate knowledge. OCGA § 17-4-20. Whether such an arrest violates the statutory authorization depends upon whether at the time of the arrest the officer had probable cause to make it. Here the officer was assaulted while in the execution of his office, and when making the arrest was in the lawful discharge of his office.
Whaley v. State,
Because Deputy Miolen was authorized to go upon the land of appellant and to direct him to remove himself and his child to a safer distance from the burning structure, and was authorized to make a warrantless arrest of appellant following his assault, evidence following this legal arrest was admissible. Appellant had raised the issue of ineffective assistance of counsel in his amended motion for new trial and it was denied. The constitutional right to effective assistance of counsel insures “ ‘not errorless counsel, and not counsel judged ineffective by hindsight, but counsel reasonably likely to render and rendering reasonably effective assistance.’ ” (Emphasis omitted.)
Pitts v. Glass,
3. Veit argues that there is a variance in the proof adduced at trial and the “warrant affidavit.” The record does not contain the warrant or its affidavit. However, assuming arguendo that the affidavit did state that the arrest preceded appellant’s alleged assault upon Deputy Miolen, this inconsistency goes only to the credibility of the *758 affiant. The indictment charged only that the physical assault by kicking and spitting occurred. The testimony of the officer at trial supported that allegation. Any inconsistency in a former statement by the officer would have been admissible for impeachment purposes, but there is no fatal variance between the allegata and probata.
4. Appellant contends the court’s charge on intent is burden shifting. The court charged: “I charge you that intent or criminal negligence to commit the crime charged in the indictment are essential elements the State must prove beyond a reasonable doubt. ... A person will not be presumed to act with criminal intention, but the tryor [sic] of facts; that is, the jury, may find such intention upon consideration of the words, conduct, demeanor, motive and all other circumstances connected with the act for which the accused is prosecuted. . . .” In
State v. Moore,
5. Appellant asserts that the trial court erred in failing to conduct a pre-sentence hearing in which he would be permitted to introduce evidence in mitigation and extenuation. Contrary to this assertion, the record contains a transcript of such hearing which was attended by Veit and his counsel. We find this enumeration of error to be without merit.
6. Appellant argues that he was indicted by a constitutionally infirm grand jury, that counsel was ineffective for failing to challenge its composition, and the trial court erred in refusing his Motion to Challenge, filed August 1986, following his trial in January 1986. There is no evidence of record of any challenge to the grand jury prior to or during the trial. Such objection must be made known at the earliest possible opportunity.
Cobb v. State,
7. We have examined the remaining allegations of error in appellant’s brief and found no one that was meritorious.
Judgment affirmed.