Westbrook v. State, 133 Ga. 578

Westbrook v. State

133 Ga. 578 | Ga. | 1909

Lead Opinion

Atkinson, J.

The Penal Code of 1895 contains the following: “§1147. No whipping shall be administered to a convict by a whipping-boss or other officer or person, except in cases where it is reasonably necessary to enforce discipline or compel work or labor by the convict.” Other statutes relating to the government and treatment of convicts are: Penal Code, §§1146, 1148, 1149, 1170, 1171; Acts 1897, p. 72, sec. 6; Acts 1903, pp. 67-8, sec. 2; Acts 1908, pp. 1124-26, secs. 10-13. There are no statutes which tend to change any provision of any of these, as to the policy of the State, or power of those in charge of convicts to inflict corporal punishment. There could be no rule of the Prison Commission, or other administrative body in charge of convicts, enlarging the power referred to, because the provisions of the Penal Code, §1147, expressly prohibit corporal punishment unless it is reasonably necessary to enforce discipline or compel labor. As to whether an officer charged with the duty of enforcing discipline or compelling work has authority to administer corporal punishment to convicts is a question which depends upon.the facts of each case, ánd is to be determined by the test of reasonableness. It is the duty of the convict to submit to every command which the warden or other officer has authority to require, but not to any which the warden or other officer has not authority to require. If the warden exceeds his authority by inflicting corporal punishment without cause, his *583act done ultra vires would amount to an assault, and would be indefensible in laiw. In this connection see cases cited in 9 Cyclopedia of Law and Procedure, 877, C. If this were not true it would be in the power of the warden, or other similar officer, to subject a convict to physical torture though he had violated no duty as a convict by any act of omission or commission. The trend of the statutes above cited tends to the humane rather than the cruel treatment of convicts. Upon conviction the convict may lose his liberty for the time being, and may be required to perform hard labor, but he does not lose security of his person against unlawful invasion. The security of person, except as expressly provided by statute, remains his right; and if it be unlawfully invaded, he may resist such unlawful invasion as if there had been no conviction. If the warden, or other officer, inflicts corporal punishment under circumstances which the law does not recognize as sufficient to justify, he invades the convict’s right of personal security, and does so at his own peril. As the officer can never exceed the bounds of reason in determining what circumstances will justify corporal punishment, it is generally a question of fact for determination by the jury whether there-is reason and authority for administering the punishment. If under the facts and circumstances the jury should conclude that the warden had acted without sufficient reason and exceeded his authority in administering corporal punishment, it would be proper to say that the punishment inflicted in excess of authority amounted to a battery. If after being assaulted by the warden, or other officer, the convict should slay the person so assaulting, it would be for the jury to say whether the homicide was committed with malice, and therefore was murder, or whether it was the result of a sudden and irresistible impulse of passion caused by the assault, which would reduce the crime to voluntary manslaughter.. Considering the testimony of the warden and guard together, the jury could have found that the mortal blow was given during a combat between the warden and the accused and not until after the accused had been struck by the warden several times in the face with the strap. They could also have found that the deceased with the other convicts on the chain had been called upon by the warden to assist in disarming the accused in order that corporal punishment might be administered to him by the warden; also that they manifested a willingness to render such assistance, and in the effort to disarm the accused *584they tightened the chain on him by force, and continued to do so during the combat between the warden and the accused, and until the latter, after having been struck several times in the face with the strap, turned upon the deceased and dealt the fatal blow. Under such circumstances, if voluntary manslaughter would have been involved had the warden been slain by the accused, the jury could also have found that the deceased was so involved as an abettor as to place him on the same footing with the warden and reduce the killing to voluntary manslaughter. Under the circumstances enumerated, if the act of violence in tightening the chain did not technically amount to an actual assault, or an attempt by the person slain to commit a serious personal injury on the accused, it could have been found to be an equivalent circumstance to justify the excitement of passion and to exclude all idea of deliberation and malice, which, under the provisions of the Penal Code, §65, would reduce the homicide to voluntary manslaughter, if it would have been such an offense to have slain the warden. Ordinarily it would be a reasonable requirement for the convict to surrender the knife when called upon by the'warden, but the controversy about the knife was collateral to the principal trouble. It probably arose out of the attempt to inflict corporal .punishment. Except for that attempt it is altogether likely that the convict would have surrendered the knife upon command of the warden, but, regarding the attempt as unreasonable, he was provoked to refuse the command. Whether that was the cause of refusal to surrender the knife was a question for the jury. The warden did not see the convicts and could not hear all that was said, and his testimony does not disclose that he learned so much concerning the disturbance among the convicts as would have required the jury to conclude that he was acting in the bounds of reason when he concluded to administer corporal punishment to this particular convict. If the jury had found that the warden was attempting unreasonably to inflict corporal punishment on the accused, his act would have been violative of Penal Code section 1147, and would have amounted to an assault. We think the court erred in failing to give in charge the law of voluntary manslaughter. Our attention has been called to the ease of Jim v. State, 15 Ga. 535, where it was held: “The homicide of his master, overseer, or lawful employer, by a slave, in resistance to an assault made upon him, must be either - justifiable *585homicide or murder.” But we think a convict stands upon a different footing from a slave, and his rights are not so restricted as it was ruled in that case with respect to a slave. The convict occupies a different attitude from the slave toward society. He is not mere property without any civil rights, but has all the rights of an ordinary citizen which are not expressly or by necessary implication taken from him by law. While the law does take his liberty, and imposes a duty of servitude and observance of discipline for the regulation of convicts, it does not deny his right to personal security against unlawful invasion. The convict is human, and his. passions are subject to influence and as liable to become uncontrollable; as if he were not a convict. The law which provides for reducing a homicide from murder to voluntary manslaughter makes no exception of a convict, but contemplates that no homicide by any person shall be classed as murder where there is an absence of malice, and that there may be an absence of malice upon the part of the slayer if the homicide is the result of irresistible passion produced by an assault or some other similar act. While it is the duty of a conviot to faithfully execute his sentence and observe the rules of discipline lawfully fixed for his government, he is not bound to submit to unauthorized acts of violence perpetrated or attempted against his person.

Judgment reversed.

All the Justices concur, except

Dissenting Opinion

Evans, P. J., and Lumpkin, J.,

dissenting. We agree with many of the legal principles announced by the majority, but can not concur in their application to the facts appearing in the record. We do not think that the defendant was entitled to a charge on the law of voluntary manslaughter.