127 Ga. 813 | Ga. | 1907
Tates was tried under an indictment charging him with the murder of Freeman, and was convicted of voluntary manslaughter. It appeared, from the evidence, that Freeman was the town marshal of Donalsonville, and that the homicide occurred while he, with two other persons whom he asked to accompany him, was attempting, without a warrant, to arrest the accused for a violation of a town ordinance committed in his presence some "months before. The accused made a motion for a new trial, which was refused, and he excepted.
\_We are here dealing with the question of the authority of a municipal peace officer to arrest, without a warrant, for a mere municipal offense, which, though committed in his presence, was perpetrated months before the attempt to arrest was made.^ It was held, by the majority of the court, in the case cited, that section 896 of our Penal Code is. applicable to municipal peace officers, such as policemen or town marshals. That section reads as follows: “An arrest may be made for a crime by an officer, either, under a warrant, or without a warant, if the offense is committed in his presence, or the offender is endeavoring to escape, or for other cause there is likely to be ^a failure of justice for want of an officer to issue a warrant.” | As stated by Mr. Justice Evans, in the majority opinion in the Sorter case, “Section 896 of our Penal Code is a codification of the common law on the subject of arrest, with perhaps a slight enlargement of the power of arrest.” “Though at common law an officer might without a warrant arrest for a breach of the peace committed in his view, the arrest must have been made at the time of, or within a reasonable time after, the 'commission of the offense, — that' is, the officer must immediately set about the arrest, and follow up the effort until the arrest is made. There must be a continued pursuit and no cessation of acts tending toward the arrest from the time of the commission of the offense until the apprehension of the offender. Any delay for, purposes foreign to the arrest will make the officer a trespasser.”! Voorhees on Arrest, §141; Hawley, Law of Arrest, 39; Regina v. Walker, 25 Eng. Law & Eq. R. 589; Clifford v. Brandon, 2 Campb. 358; Cook v. Nethercote, 6 C. & P. 741; Coupey v. Henley, 2 Esp. 540; Taylor v. Strong, 3 Wend. 385; Wahl v. Walton, 30 Minn. 506. A statute of Minnesota provided that a peace officer might, without a warrant, arrest a person under prescribed conditions, set forth in subdivisions of the statute, the first of which provided that the officer might so arrest “for a public offense committed or attempted in his pres
For one whom an officer attempts to illegally arrest to kill such officer, while making such attempt, not in malice, nor in self-defense against an apparent effort of such officer to take his life or to commit a felonious assault upon him, but simply to prevent the arrest, is voluntary manslaughter. Porter v. State, supra; Williford v. State, 121 Ga. 173; Whar. Homicide, §225-271; Cryer v. State, 71 Miss. 467; Reg. v. Chapman, 12 Cox’s' Crim. Cas. 4; Briggs v. Com., 82 Va. 554; Rafferty v. State, 69 Ill. 111, s. c. 72 Ill. 37; Rex v. Patience, 7 Carr. & Payne, 775; 1 Whar. Crim. L. (10th ed.), §414; Com. v. Carey, 12 Cush. (Mass.), 246; Rofts v. State, 14 Mo. 138. While the jury found the accused guilty of voluntary manslaughter, and the evidence for the State was very strong, and, notwithstanding the unlawfulness of the attempted arrest, abundantly supported the verdict, and but for this feature of the case would have demanded a verdict of murder, yet we can not say that the error of the court which we have just been considering does not require the grant of a new trial. For the accused pleaded self-defense, and his own statement and the testimony of his brother, corroborated to some extent by the testimony of other witnesses, if credited by the jury, would have supported such defense; and he was entitled to have the unlawfulness of the arrest sought to be made considered in connection with the evidence and statement as applied to this defense. He had a right to reasonably resist an attempt to unlawfully arrest him; he had no right to offer any resistance whatever to a lawful effort to arrest .him. The effect of the court’s charge, as applied to the evidence, was that the officer had the right to make the arrest, and the accused had no right to resist, thus putting the officer in the right and the accused in the wrong at the very inception of the fatal rencounter between them. The charge eliminated from the case, and withdrew from the consideration of the jury, the fact that the deceased, and not the accused, was the aggressor in the beginning of the'occurrence between them Which resulted in the deplorable tragedy, and placed the accused, even then, in an attitude of open defiance to the law; and this, we think, had a tendency to prejudice his defense in the estimation of the jury. Besides, the evidence showed that at the
As a new trial must be granted for the reasons above indicated, it is unnecessary to deal with the grounds of the motion for a new trial, in reference to the overruling of defendant’s motion for a continuance, holding a certain juror to be competent under his answers to the 'statutory questions, and allowing the State to reopen the case and reintroduce a named witness after both sides had closed.
Judgment reversed,.