Faulkner v. State , 166 Ga. 645 ( 1928 )

Hines, J.

(After stating the foregoing facts.)

The admission of the statement of the deceased to the witness Williamson, as a dying declaration, was not erroneous over the objection that the preliminary proof did not show that the deceased was conscious of the fact that he was in a dying condition. The deceased was shot on Thursday night. This statement was made on Friday night. The deceased died at 1:30 a. m. on the following Wednesday. He was shot in the left leg, above the knee, and the long bone in his thigh was shattered. He was shot in the left arm, and the bone of that arm was shattered. The medical testimony was that he died as the result of these shots. On Tuesday before the deceased died the doctors discovered that blood-poisoning had set in. In his statement to Williamson the deceased stated that he felt he would not recover, and that if anything happened he wanted to give to Williamson, who was the chief of police, an account of the manner in which he was shot by the defendant. From this statement the jury might infer that the deceased was conscious of his condition. There was evidence which would authorize a finding that he was not then in a dying condition, and there is no other express evidence, except the above declaration to the chief of police, that he was conscious of his condition and that he would not recover. To render statements of the deceased admissible as dying declarations, they must be made by him while in the article of death, and he must be conscious of his condition. Penal Code, § 1026. A prima facie case is all that is necessary to carry dying declarations to the jury. Varnedoe v. State, 75 Ga. 181 (58 Am. R. 465). In Bryant v. State, 80 Ga. 272 (4 S. E. 853), it was held that where a person on Monday was lodged in jail under a charge of burglary, and showed signs of having been beaten, and died from the effects of'the wound on "Wednesday of the following week, and where on Friday after his incarceration he stated that he was going to die, and that a clan of men had whipped him with a buggy-trace, defendant being one of the crowd, there was no error in admitting these statements as dying declarations, although the witness who narrated them testified that he thought the deceased was in no particular danger when he made the statements, and although a doctor, who was sent for on Monday before he died, testified that he thought he would have recovered under proper treatment. Consciousness of his condition may be inferred from the nature of the wound, or from other circumstances. Perdue v. State, 135 Ga. 277 (69 S. E. 184); Barnett v. State, 136 Ga. 65 (70 S. E. 868); Jefferson v. State, 137 Ga. 382 (73 S. E. 499). An alleged dying declaration should not be rejected merely because such statement was made several days prior to the death of the declarant. Coart v. State, 156 Ga. 536 (3) (119 S. E. 723). The court properly submitted to the jury the final determination of the question whether the deceased, when this declaration was made, was in the article of death and conscious of his condition. The evidence in this case made an issue of fact whether the deceased was in the article of death and was conscious of his condition at the time he made this statement to the chief of police, and was one to be passed upon by the jury. Anderson v. State, 122 Ga. 161 (50 S. E. 46) ; Findley v. State, 125 Ga. 579 (54 S. E. 106). In view of the fact that the deceased afterwards, when clearly shown to be in the article Of death, made a similar statement to his attending physicians, we are less inclined to hold that this statement was inadmissible upon the ground of objection urged against its admission.

Defendant insists that the court erred in giving in charge to the jury the instruction complained of in the fifth ground of the motion for new trial. The exception to this charge is based upon the ground, not that it is an incorrect statement of the law, but that the entire defense insisted upon b3^ the defendant was that he shot at Mayfield and had no intention of shooting the deceased, who was in the rear of Mayfield, the latter being a larger man than the deceased, and who drew a pistol on the defendant before the shooting began; and that for this reason this instruction should have been made to apply to Mayfield rather than to the deceased. We think this ground of exception is -without merit. If the theory of defense that the defendant was justified in shooting the deceased, for the reason that he was justified in shooting at Mayfield, and in so shooting unintentionally killed the deceased, was applicable in this case, then any principle of law applicable in determining whether the defendant was justified in shooting at Mayfield would likewise be applicable in determining whether he was justified in killing the deceased. For this reason this instruction of the court to the jury was not erroneous solely for the reason that it was only applicable' if the defendant had been on trial for the murder of Mayfield. The sole objection to this instruction being that it was inapplicable under the defense set up by the defendant, we are not called upon to determine whether this charge embodied a correct principle of law.

The defendant excepts to the charge embraced in the sixth ground as erroneous, (1) because of the language that the defendant could “have avoided the attempted arrest by running away from the officer;” (2) it refers to a legal arrest, when the arrest was illegal, and the court should have so charged the jury; and (3) the court should have charged in connection therewith the contention of the defendant that he shot at Mayfield, and had no intention of shooting the deceased. We are of the opinion that the court erred in the use of the language above quoted. A person who resists an illegal arrest is not required to flee from the arresting officer, if by flight he could avoid the illegal arrest. This error would require the grant of a new trial if the evidence disclosed that the defendant was guilty of no offense, or, if guilty of an offense, that the same was not committed in the presence of the officer, or the defendant was not endeavoring to escape, or for other reason there was not likely to be a failure of justice for want of an officer to issue a warrant. The undisputed evidence discloses that the defendant had committed an offense, and that this offense was committed in the presence of the arresting officer. Shortly before the arrest there had been a collision between an automobile of the defendant, the same being occupied by his wife and children and driven by himself, and an automobile driven by one Collins. A dispute arose between the defendant and Collins as to which one of them was at fault in causing the collision. The defendant insisted that Collins was at fault, and this Collins denied. The collision having occurred within the limits of the City of Monroe, the defendant telephoned the deceased, who was a policeman of that city, to come to the scene of the wreck for the purpose of determining, while the evidence was fresh, whether the defendant or Collins was at fault in bringing about the collision. The deceased and Mayfield, another policeman of the city, soon appeared at the scene of the collision. The deceased informed defendant that he could not determine who was at fault and who was liable for damages, but that he would make a case against both of them for reckless driving, and the matter could be settled before the mayor the next day. He thereupon notified the defendant and Collins to appear before the mayor the next day at a given hour, and also notified certain other persons to appear before the mayor at the same time, personally as witnesses. The defendant, being enraged and excited, “ripped out cursing” Collins, and used of and to and in the presence of Collins,'and in the presence of these officers, certain extremely abusive and offensive language. This language in abbreviated form appears in the statement of facts. Thereupon the deceased put the defendant under arrest, and placed him in charge of policeman Mayfield, the arrest being made for disorderly conduct, based upon the fact that the defendant was drunk and cursing. While there was evidence which would authorize the jury to find that the defendant was not drunk, and even that his appearance indicated that he was not drinking, there is no evidence which would authorize a finding that the defendant did not use to Collins the abusive and offensive language attributed to him by the policeman Mayfield. In his statement to the jury the defendant virtually admits the use of such language. According to the evidence for the State, this cursing and abuse of Collins by this defendant took place across the street from the filling-station. In his statement to the jury the defendant used this language: “We were standing over there talking, and this fellow Collins . . came over there and he commenced disputing my word, and of course it flew all over me, and I will admit I said things I was sorry of in a second. Mr. Moon said I ought to be ashamed. I was ashamed of what I said.” It is true that other witnesses, who were across the street at the filling-station, testified they did not hear this cursing and abusive language, that they did not' hear any disturbance between the defendant and the policemen, and that there was no arrest of the defendant by the deceased, so far as they knew. But in view of the evidence and of the above admission of the defendant, we think a finding that the defendant cursed and abused Collins in the presence of the officers was demanded.

Did the cursing of Collins by the defendant and the use by the latter to the former of extremely abusive and offensive language constitute an offense, either at eomman-law, by our Penal Code, or the charter of the City of Monroe? In other words, did such cursing and use of this abusive and offensive language constitute a breach of the peace? By the common law, “The term breach of the peace is generic, and includes all violations of the public peace or order, or decorum. “Breach of the peace is a common-law offense. 9 C. J. 386, § 1, A. It is true abusive and insulting language do not constitute a breach of the peace where there is no incitement to immediate violence. "Where it has a tendency to create a tumult and provoke a conflict, and especially where denounced by statute, the use of such language may constitute an offense. 9 C. J. 388, § 3, 2. In the instant case the cursing and 'abuse which the defendant heaped upon Collins was calculated to produce immediate violence, and constituted a breach of the peace. While the defendant could not have been arrested for the use of the abusive language, he could be arrested for breach of the peace. By express provision of our Penal Code, § 366, all offenses against the public peace, not therein provided for, are misdemeanors. This section is sufficiently broad in its terms to authorize the punishment of any offense which was an offense at the common law against the public peace, and punishment of which is not provided for in our Penal Code. Ormond v. Ball, 120 Ga. 916 (48 S. E. 383); Prichard v. State, 160 Ga. 527 (128 S. E. 655). The defendant being engaged in a breach of the peace, or in an attempt to commit a breach of the peace, and the same being committed within the limits of the City of Monroe and in the presence of its policemen, these officers had the right to arrest him. By the common-law, an officer could arrest without a warrant in cases of breaches of the peace committed in his presence. Hawley’s Criminal Law, 98. By our law they can do the same thing. Smith v. State, 10 Ga. App. 36 (72 S. E. 527). In this State, “An arrest may be made for a crime by an officer . . without a warrant, 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 offieer4o issue a warrant.” Penal Code, § 917. This provision of law “is applicable alike to State and municipal arresting officers.” Porter v. State, 124 Ga. 297 (52 S. E. 283, 2 L. R. A. (N. S.) 730). A policeman is as much under the protection of the law in making an arrest as any public officer, such as sheriff, bailiff, or constable. Johnson v. State, 30 Ga. 426. A police officer may make an arrest without a warrant, for a crime committed in his presence; but there must be an offense committed by the party arrested. O’Connor v. State, 64 Ga. 125 (37 Am. R. 58). “A charge that a policeman may arrest without warrant, for disorderly conduct or other violation of city ordinances, or for crime, in order to prevent escape, is not error.” Harrell v. State, 75 Ga. 842 (2). In Daniel v. Athens, 110 Ga. 289 (34 S. E. 1020), it was held that “The use, in the presence of a man, of an obscene word in an ordinary tone, without anger, and under circumstances not calculated to offend the hearer or cause a breach of the peace, does not constitute a violation of a municipal ordinance prohibiting disorderly conduct ‘ calculated to disturb the peace of the citizen/ ” But the converse of the proposition, that the use of abusive language, calculated to cause a breach of the peace, violated such ordinance, necessarily follows under this ruling. By the 32d section of the charter of the City of Monroe, any policeman of said city can arrest without a warrant any person he may see violating any of its ordinances, or any person reported to him as having violated said ordinances. Acts 1896, pp. 212, 221. Having reached the conclusion that, under the law and facts of this case, a finding was demanded that the arrest of the defendant was legal, any errors embraced in the charge of the court in his instruction to the jury, touching the right of the defendant to resist an illegal arrest, do not require the grant of a new trial. Georgia etc. R. Co. v. Lasseter, 122 Ga. 679 (50 S. E. 105).

The charge complained of in the seventh ground does not require the grant of a new trial. Neither the evidence nor the statement of the defendant made a case of justifiable homicide, under the theory that the defendant was justifiable in shooting at Mayfield and unintentionally killing the deceased. The evidence shows that the defendant shot twice at Mayfield, and twice at the deceased. In his statement the defendant does not assert that he was shooting at Mayfield and accidentally shot the deceased. He asserts that he did not know the deceased was hit; but he makes the same statement as to Mayfield. Furthermore, in the circumstances, if the defendant wished any further instruction upon this theory of defense, he should have preferred a request for such additional instruction.

Under what we have said in the third division of this opinion, the court did not err in failing to charge the jury that, under the proved facts, the arrest of the defendant by these officers was illegal. On the contrary, such instruction would have been erroneous.

Where a defendant was indicted and tried for the murder of a policeman, and was separately indicted for an assault with intent to murder another policeman, both offenses growing out of the same transaction, the ruling of the trial judge that the relatives of the latter policeman were competent jurors to try the defendant in the murder case, even if erroneous (on which we do not pass judgment), does not require the grant of a new trial, as it was not shown that the defendant was in any way injured thereby, it not being made to appear that any relative of Mayfield served on the jury, or that the defendant was compelled to exhaust his peremptory challenges for the purpose of getting rid of such relatives, and that for this reason he could not challenge other jurors whom he wished to get rid of, or that the State was in any way benefited by such ruling. The burden was upon the defendant to show that he was in some way injured by this ruling. This he has failed to do. Etheridge v. State, 163 Ga. 186 (1(b)) (136 S. E. 72); Ford v. State, 12 Ga. App. 228 (76 S. E. 1079); 16 E. C. L. 291, § 106.

The assignment of error in the tenth ground is without merit.

The evidence authorized the verdict.

Judgment affirmed.

All the Justices concur, except Allcinson, J., who dissents from third and sixth headnotes.