Paramore v. State , 161 Ga. 166 ( 1925 )

Atkinson, J.

The ruling announced in the first headnote does not require elaboration.

The eighth and eleventh grounds of the motion for new trial complain of the charge which is quoted in the second headnote. Numerous exceptions were taken to this portion of the charge. In 2 R. C. L. 473, § 30, it is said: “As a general rule, in the case of a misdemeanor an officer has no right, except in self-defense, to kill the offender, either in attempting to make an arrest, or in preventing his escape after arrest.” See also 5 C. J. 426, § 62. In Holland v. State, 162 Ala. 5, 13 (50 So. 215), it was said: “While an officer having a warrant of arrest is justifiable in killing one charged with a felony, if he resist or flees, this rule does not prevail as to arrest of persons charged with misdemeanors. ‘When an attempted arrest is for an ordinary misdemeanor or in a civil action, life can only be taken by the officer where the person arrested resists by force, and so endangers the life or person of the officer as to make such killing necessary in self-defense.’ Kerr on Homicide, 187; Birt v. State, 156 Ala. 29, 46 South. 858; Clements v. State, 50 Ala. 117.” In Rawlings v. Commonwealth, 191 Ky. 401, 405 (230 S. W. 529), it was said: “The law is that an officer in arresting a misdemeanant has no right to shoot, wound, or kill him solely for the purpose of effecting his arrest, or to prevent his escape. Stevens v. Commonwealth, 124 Ky. 32; Reed v. Commonwealth, 125 Ky. 126; Smith v. Commonwealth, 176 Ky. 466, and Hickey v. Commonwealth, 185 Ky. 570.” See also Terrell v. Commonwealth, 194 Ky. 608 (240 S. W. 81). In Croom v. State, 85 Ga. 718, 725 (11 S. E. 1035, 21 Am. St. R. 179), this court said, by way of argument: “Hamlin [a bailiff] had shortly before that time killed a negro unlawfully; for he could not lawfully kfll him merely because he ran from him to avoid arrest for a misdemeanor.” See also Holmes v. State, 5 Ga. App. 166 (2) (62 S. E. 716).

The case of People v. Klein, 305 Ill. 141, 146 (137 N. E. 145), involved a homicide committed by a deputy sheriff by shooting a person in an automobile. The officer fired the shot after the automobile had p&ssed him on the road and the driver had failed to respond to the officer’s command to stop. It was said in the opinion: “Even though it were to he conceded that the evidence shows that the shooting was not done in reckless disregard of human life but in an attempt on the part of the accused to make an arrest, there was no justification for his firing his gun for such purpose. The offense, if one was being committed by the deceased and Ms companions, was but a misdemeanor. An officer, generally, may use a deadly weapon, even to the extent of taking life, if necessary to effect the arrest of a felon, for the reason that the safety of the public is endangered while such felon is at large; but the rule, by the great weight of authority both in this country, and in England, is, that except in self-defense an officer may not use a deadly weapon or take life to effect an arrest for a misdemeanor, whether his purpose is to kill or merely to stop the other’s flight. This is true, even though the offender can not be taken otherwise. State v. Smith, 127 Iowa, 534; State v. Sigman, 106 N. C. 728; Conraddy v. People, 5 Park. Crim. (N. Y.) 234; Commonwealth v. Loughhead, 218 Pa. 429; Forster’s case, 1 Lew C. C. (Eng.) 187; 5 Corpus Juris, 426; Wharton on Homicide (3d ed.), sec. 500.” The case of Coldeen v. Reid, 107 Wash. 508 (182 Pac. 599), was another instance of an officer shooting a pistol into an automobile which proceeded after the driver was ordered by the officer to halt. It was said: “In attempting to make-an arrest for a misdemeanor, police officers have no warrant to maim or kill a person who attempts to escape.” The case of People v. Lathrop, 49 Cal. App. 63, 70 (192 Pac. 722), involved the crime of assault with intent to commit murder, made by an officer by shooting a gun on the ground about six or eight feet behind an automobile which the driver had refused to stop after being commanded to do so by the officer. The court said: “There was no pretense of any resistance on the part of Soares, or that defendant was in any danger of violence, and the mere fact that Soares had committed a misdemeanor and was attempting to escape did not warrant the defendant in thus recklessly exposing Soares to such injury. The humanity of the law requires rather that the fugitive should have been permitted to escape for the time being. There was nothing so urgent about the case as to demand the drastic course pursued by the defendant. Other effective and less dangerous means were open to him.”

Harding v. State (Arizona), 225 Pac. 482, was a case where an officer in attempting to arrest a driver shot at a tire to disable the automobile, and killed the driver. It was held that even though the killing was unintentional, the act of shooting being unlawful, the officer committed the offense of involuntary manslaughter. It was said in the opinion: “Hnder section 854 of the Penal Code, a peace officer is authorized, either with or without a warrant, to make arrests of persons committing, or attempting to commit, a public offense in his presence.. Since the deceased was, at the time appellant shot him, actually committing a misdemeanor, the appellant under the law had a right to arrest him; but the question is, did he, under the facts, have a right to shoot him ? It must be admitted that there is a wide difference between the right to arrest a misdemeanant and to kill him. In Wiley v. State, 19 Ariz. 346, 170 Pac. 869, L. R. A. 1918D, 373, we quoted with approval, from Petrie v. Cartwright, 114 Ky. 103, 70 S. W. 297, 59 L. R. A. 720, 102 Am. St. Rep. 274, the following language: ' The notion that a peace officer may in all cases shoot one who flees from him when about to be arrested is unfounded. Officers have no such power, except in cases of felony, and there as a last resort, after all other means have failed. It is never allowed where the offense is only a misdemeanor.5 This is practically the universal rule. 5 C. J. 426, section 62, states it thus: 'Except in self-defense, an officer has no right to proceed to the extremity of shedding blood in arresting, or in preventing the escape of one whom he has arrested, for an offense less than felony, even though the offender can not be taken otherwise, a distinction being recognized in this respect between arrests for misdemeanors and arrests for felonies.5 In State v. Sigman, 106 N. C. 728, 11 S. E. 520, it is said: 'An officer who kills a person charged with a misdemeanor, while fleeing from him, is guilty of manslaughter, at least.5 The reason for limiting the powers of a peace officer in making an arrest of a person committing, or attempting to commit, a public offense of the grade of misdemeanor in his presence is that organized society will suffer less by the temporary escape of such person than it would if the officer should be permitted to take his life, or inflict upon him great bodily harm, to prevent his.escape. Most of the acts graded as misdemeanors have no element of moral turpitude, and are offenses simply because the public policy, through the lawmaking body, has so decreed. But even when the act is malum in se, and is graded as a misdemeanor, it is not thought to deserve death at the hands of an arresting officer simply because the offender seeks to avoid arrest by running away. When the offense is bad simply because prohibited, much less should the officer assume to take the offender’s life if he disregards orders, and fails to stop' when commanded to do so, but keeps on going. Persons charged with petty offenses do not usually run very far nor hide out very long; and if they do not later seek the officer and surrender to him, it is ordinarily easy enough for the officer to find them and arrest them without bloodshed. But, whether such offenders are ever arrested or not, no peace officer has any right to shoot them because they do not halt when told to do so — ‘the theory of the law being that it is better than a misdemeanant escape than that human life be taken.’ United States v. Clark (C. C.) 31 Fed. 710. In Thomas v. Kinkead, 55 Ark. 502, 18 S. W. 854, 15 L. R. A. 558, 29 Am. St. Rep. 68, the court was considering the power of a peace officer to rearrest an escaped misdemeanant, and concluded that it was the same and no greater than in making an original arrest. In arguing the question, the court used this very pertinent language: ‘And it would ill become the “majesty” of the law to sacrifice a human life to avoid a failure of justice, in the case of a petty offender who is often brought into court without arrest, and dismissed with a nominal fine. It is admitted that an officer can not lawfully kill one who merely flees to avoid arrest for a misdemeanor, although it may appear that he can never be taken otherwise. If he runs, then, before the officer has laid his hands upon him with words of arrest, he may do so without danger to his life.’ See, also, 1 Michie on Homicide, p. 257, § 72.”

One of the rulings made in State v. Sigman, 106 N. C. 728 (11 S. E. 520), was: “Where a person charged with a misdemeanor escaped from the custody of an officer, and was fleeing to avoid a rearrest, and the officer, being unable to overtake him, threatened to shoot, and, the fugitive not stopping, did fire his pistol when within thirty yards: Held, that the officer was guilty of an assault, no matter whether his intention was to hit the person so fleeing ox simply to intimidate him and thereby induce him to surrender.” It is stated in the text in Wharton on Homicide (3d ed.), 748, § 500: “An officer may not exert force in effecting an arrest for a misdemeanor, or in preventing escape or rescue after such arrest, to the extent of employing a deadly weapon, or of taking life, though without such force the wrong-doer may escape. And this is so whether his purpose was to kill or merely to stop the other’s flight.”

In the instant case the offense for which the defendant was arrested (the offense of having intoxicating liquors in his possession) was a misdemeanor. Under application of the foregoing principles it would have been unlawful for the officer to shoot at him with a pistol, while he was fleeing, merely to prevent his escape. A different question would have been presented if the arrest had been for a felony. As to the duty and authority of a penitentiary guard in relation to a felony convict endeavoring to escape, see Jackson v. State, 76 Ga. 473. Where an officer unlawfully shoots at a fleeing offender, such unlawful act may or may not, according to the circumstances of the particular case, amount to an assault or a more serious offense, and may afford grounds of mitigation or even justification of the killing of the officer by such fleeing defendant. The unlawfulness of the act of shooting at the person would bring the case within the principle of Norton v. State, 137 Ga. 842 (3) (74 S. E. 759), where it was held: “One upon whom an arrest unlawfully and without a warrant is attempted to be made has a right to resist force with force proportionate to that being used in detaining him. The mere fact of unlawful arrest will not alone authorize the killing of the officer making it. But if, in the progress of the transaction, the officer is about to commit a felony upon the other party, or so acts and makes such a show of violence as to excite in the person sought to be arrested the fears of a reasonable man that a felony is about to be committed upon him, and such person acts under the influence of those fears and not in a spirit of revenge, he may protect himself, although it may be necessary to slay the officer for that purpose. In some cases, where the circumstances are not such as to justify the killing of the officer, they may be sufficient to reduce the homicide from murder to manslaughter. Franklin v. Amerson, 118 Ga. 860, 863 (45 S. E. 698); Thomas v. State, 91 Ga. 204 (18 S. E. 305); Perdue v. State, 135 Ga. 277, 284 (69 S. E. 184); Porter v. State, 124 Ga. 297 (52 S. E. 283, 2 L. R. A. (N. S.) 730).” See also Pickett v. State, 99 Ga. 12 (2) (supra). The charge quoted above was opposed to the principles here announced, and deprived the defendant of all right to insist upon mitigation or justification of the homicide on the ground that the act of the officer in shooting at him was unlawful. The charge was erroneous and requires the grant of a new trial.

The 9th ground of the motion for new trial was as follows: “Because the court erred, after having given to the jury definition of murder and express and implied malice and informing the jury of the penalty in case the person tried was convicted of murder, in charging the jury as follows: 'Manslaughter is the unlawful killing of a human creature without malice, either express or implied, and without any mixture of deliberation whatever, which may be voluntary upon a sudden heat of passion, or involuntary in the eommissioni of an unlawful act, or a lawful act without due caution and circumspection. In all eases of voluntary manslaughter there must be some actual assault upon the person killing, or an attempt by the person' killed to commit a serious personal injury on the person killing, or other equivalent circumstances to justify the excitement of passion and to exclude all idea of deliberation or malice, either express or implied. Provocation by words, threats, menaces, or contemptuous gestures shall in no case be sufficient to free the person killing from the guilt and crime of murder. The killing must be the result of that sudden, violent impulse of passion supposed to be irresistible; for if there should have been an interval between the assault or provocation given and the homicide, of which the jury in all cases shall be the judges, sufficient for the voice of reason and humanity to be heard, the killing shall be attributed to deliberate revenge, and be punished as murder. Voluntary manslaughter shall be punished by confinement and labor in the penitentiary for not less than one nor longer than twenty years. Justifiable homicide is the killing of a human being by commandment of the law in execution of public justice; by permission of the law in advancement of public justice; in self-defense, or in defense of habitation, property, or person, against one who manifestly intends or endeavors, by violence or surprise, to commit a felony on either. A bare fear of any of those offenses, to prevent which the homicide is alleged to have been committed, shall not be sufficient to justify the killing. It must appear that the circumstances were sufficient to excite the fears of a reasonable man, and that the party killing really acted under the influence of those fears and not in a spirit of revenge.” This entire charge is excepted to upon the ground that it left “the jury to believe that the doctrine of reasonable fears as enunciated in said Code section 71 applied to the law of manslaughter, and that said charge was confusing and misleading and was likely to' impress the jury that the doctrine of reasonable fears as applied to the case at bar did apply to the law of manslaughter.” The charge is not open to the criticism made upon it. While it is true that the court did charge upon the subject of voluntary manslaughter, the court had passed from that subject before giving section 71 of the Penal Code. This appears from an inspection of the charge. After having charged the statute relating to voluntary manslaughter, the court then, in the language of the statute (Penal Code, § 70), dealt with the subject of justifiable homicide, and it was after the definition of justifiable homicide that he stated to the jury the doctrine of reasonable fears as defined in section 71. It is not probable that the jury were so confused by this part of the charge as to apply it to the charge upon voluntary manslaughter. To hold otherwise would be to assume that the jury would ignore the fact that the court had just charged them on the subject of justifiable homicide, and that their minds would revert to the charge on voluntary manslaughter, and apply to that grade of homicide the charge on reasonable doubt, instead of applying it to the subject of justifiable homicide, to which it naturally referred and was made applicable both from the subject with which the court was dealing and by the position in which it stands in the court’s charge.

The rulings announced in the headnotes numbered four to ten, inclusive, do not require elaboration.

Judgment reversed.

All the Justices concur, Bussell, O. J., specially.