Booker v. State , 182 Ga. 794 ( 1936 )

Russell, Chief Justice.

1. Error was assigned upon the following charge: “I charge you that if you believe under the evidence, facts and circumstances of this case, and that beyond a reasonable doubt, that the defendant Tom Booker, in this county, caused the death of or killed Mr. H. A. Sturdivant, the person named in the indictment, to avoid being taken into custody by him, knowing that the object of the officer was to make an arrest for a felony committed prior to that time, why in that event I charge you that the defendant would be guilty of the offense of murder.” This charge was error for the reason that it made the defendant’s guilt depend solely upon the question whether the defendant killed the officer to avoid being arrested, whereas if the officer was attempting to arrest the defendant without a warrant for a crime that was not committed in his presence, and the defendant was not attempting to escape, or there was not likely to be a failure of justice for want of an officer to issue a warrant, the defendant would have had the right to resist such arrest with such force as was reasonably necessary to prevent it. These principles of law were pertinent and applicable under the evidence, and were entirely ignored in the excerpt complained of, and the error thus committed was not cured by any other instruction given. Eor this reason the court erred in refusing a new trial. Coleman v. State, 121 Ga. 594 (6, 7) (49 S. E. 716); Savannah Electric Co. v. McClelland, 128 Ga. 87 (2) (57 S. E. 91).

. 2. Other assignments of error were attempted, but as presented they did not show sufficient cause for reversal.

Judgment reversed.

All the Justices concur, except