Hickman v. State , 142 Ga. 630 ( 1914 )

Evans, P. J.

(After stating the foregoing facts.) 1. The court instructed the jury: “If you believe that the officer made no attempt whatever to arrest him, made no call upon him to surrender, or not to shoot him, but deliberately, without notifying hini of the fact that he had been detected and discovered, without attempting to arrest him, attempted to shoot him, and shot before this defendant shot at all, then, in that event, the defendant would not have been guilty of murder, but he might have been guilty of voluntary manslaughter if he shot under those circumstances.” This charge is criticised on the ground that, under the facts hypothesised by the court, the defendant would have been guilty of voluntary manslaughter, and that the court should have so instructed the 'jury. In another ground it is also contended that the court erred in omitting to instruct the jury on the subject of voluntary manslaughter. The decedent was referred to in the testimony as being an officer of the railroad company, but from the context it is clear that he was not an officer authorized by law to make arrests. He was a watchman for the railroad company, employed to protect its railroad yards. Nevertheless, under the circumstances of this case, he was authorized to arrest the defendant in the act of breaking open a freight-car with intent to steal. This crime is a felony (Penal Code (1910), § 181), and the statute authorizes a private person without warrant to arrest for an offense committed in his presence (Penal Code (1910), § 921). It is argued by counsel for the plaintiff in error that there is evidence authorizing a deduction that the decedent suddenly rushed upon the defendant, in an attempt to encompass his arrest, without giving the defendant any notice or warning of such purpose; and that the killing of the decedent under these circumstances was voluntary manslaughter. The testimony relied upon to support this argument is the statement in the dying declaration of the decedent that he went to the car for the purpose of making an arrest, and the testimony of one of the State’s witnesses that the first two shots which were fired were from the outside of the car. The deduction sought to be drawn is that as the defendant was inside the car, the decedent, who was on the outside, fired the first shot in an attempt to make an arrest. The reply to this argument is that the facts of the case do not authorize the conclusion sought to be drawn. It was testified that the defendant told the witness that he knew the purpose of the decedent in going to the car which had been burglarized was to arrest the thief. In his statement made at the trial the defendant admitted that he knew the decedent was a watchman in the railroad-yard, and that the watchman’s purpose in going to the car where he was mortally wounded was to arrest the person in the car. It is true he denied that he was that person, but he admitted he knew that the watchman approached the car for the purpose of arresting the man in the car. There is no contradiction of the testimony, or of the defendant’s statement on the trial, that the defendant knew that the purpose of the decedent in going to the car which had been broken into was to arrest the felon therein. The dying declaration of the watchman is that he warned the defendant not to shoot him, and that the defendant shot him from the car. The identity of the defendant as the slaj^er was established both circumstantially and by the dying declaration of the decedent. The court might have well omitted the excerpt from the charge to which exception is made, as the evidence was insufficient to afford a basis for 'a charge on voluntary manslaughter.

2. There is no merit in the other exceptions to the charge. The verdict is supported by the evidence, and no reason appears for the grant of a new trial.

Judgment affirmed.

All the Justices concur.