Porter v. State , 124 Ga. 297 ( 1905 )

EvaNS, J.

Oscar Porter was convicted of the offense of assault with intent to murder. It appeared on the trial that the marshal of the town of Lumpkin was approached by a negro, John Anderson, upon the public square of the town, and requested to arrest the defendant upon a charge of disorderly conduct. The defendant was at the time but a short distance from the marshal, and had full opportunity to observe the marshal and Anderson in conversation. After listening to Anderson’s complaint, the marshal followed the defendant, who was walking down the. street. The marshal quickened his pace, and the defendant also walked faster, when the marshal called him by name and told him to stop; whereupon the defendant ran in the direction of his home and disappeared from the marshal’s view. The officer, some half or three quarters of an hour afterwards, discovered the defendant on the public square sitting upon some piping, with a gun-resting upon his lap. The officer attempted to approach him unobserved, for the purpose of making an arrest upon the complaint which had been made to him. When the marshal got within ten feet of the defendant, the latter suddenly sprang up, fired at the marshal, and then ran off. He was afterwards captured in another county. The marshal was in uniform and carried a club, but made no attempt to use it before he was fired upon. The marshal had no warrant for the defendant’s arrest. No ordinance of the town was violated by the defendant in the officer’s presence. At the time of the occurrence, the mayor of the town “was at home sick.” An ordinance of the town defining disorderly conduct and providing for the punishment of one guilty thereof was introduced in evidence by the State, and also an ordinance defining the duties of the.police force. The defendant in his statement contended that the shooting was accidental. In his motion for a new trial the defendant complains that the court erred in admitting in evidence the above-mentioned ordinances of the town, and also in charging the jury, and in refusing a certain request to charge. The motion was overruled, and error is assigned on the judgment denying the defendant a new trial.

1. The third ground of the amended motion assails the instruction of the court therein excepted to, as contradictory and as not applicable to the facts of the case, and as being- objectionable because it assumes that a marshal of a town may legally arrest without a warrant an offender against a municipal ordinance. The charge excepted to was as follows: “A marshal-of a town has the right to arrest a person for the violation of the ordinances of the town, without any warrant for the purpose of doing so. It is not required that a city marshal or policeman shall have warrants to make such arrests; or, in other words,, if they make the arrest without a warrant, that would not be an illegal arrest. While that is true, an officer of a city, a marshal, or a policeman, would not be authorized, or rather it would be an illegal arrest or attempt to arrest for an offense not committed in the presence of the officer, unless there was some other reason for which the law would authorize an arrest to be made or an attempt to be made without a warrant or a process of law for making such arrest. While that is true, if an ordinance of a city or town be violated by a person, and it should be reported to an officer that such ordinance had been violated, or that there had been a violation of a certain ordinance by a person, and such person should be attempting to flee, make his escape, then such officer would have the right to proceed to make such arrest without a warrant; and if in doing so the person'so fleeing resists arrest, and with a deadly weapon attempt to take the officer’s life, he would be guilty of an assault with intent to commit murder.” It is evident from an analysis of this instruction that the court meant that the power of arrest without a warrant could be lawfully exercised by a marshal where the offender was endeavoring to escape. The language' used in the beginning implied an unqualified power of arrest without a warrant, and might have misled the jury. Construing the whole charge complained of as an instruction that an officer without a warrant may arrest an offender who is endeavoring to escape, we think it was unauthorized by the facts. A reference to the statement of facts will disclose that the defendant, at the time of the shooting, was not attempting to escape, nor was he at the time trying to elude arrest by flight. On the contrary, what the defendant then did was to resist arrest. If the marshal could lawfully arrest without a warrant, the defendant could not legally interfere with the officer in the discharge of his duty.

The trial judge was evidently of the opinion that under the circumstances detailed by the marshal, upen whose testimony the State relied for a conviction, he was justified in attempting to arrest the defendant without a warrant, inasmuch as the defendant had taken to flight when first approached by the officer. Exception is taken to the following charge upon this subject: "Now, if you believe from the facts of this case that this defendant, Oscar Porter, had violated some of the penal ordinances of the town of Lumpkin, and that that fact was made known to the city marshal, Mr. Bell, and if he was then in the presence of, or in sight of, the defendant, and the defendant attempted to flee, evade an arrest by escape, the city marshal would have the right to proceed to make that arrest without waiting to get any due process of law for the purpose of doing so; and if in his endeavor to make that arrest under those circumstances, without any warrant, the defendant should resist him and attempt to .take his life as charged in the indictment, he would be without justification in doing so, and the jury would be authorized to so find, a verdict finding the defendant guilty.” The -complaint made of this charge is that it did not correctly state the law applicable to the case, in that it amounted to an instruction that the "marshal could arrest the defendant upon mere request or demand, without a warrant or process,” provided the defendant saw the party report him or demand his arrest for a past offense, and that if the defendant attempted to prevent such arrest by flight, his mere effort to prevent such arrest would authorize his subsequent arrest; that the charge assumed there had been a violation of a municipal ordinance by the defendant, although there was no evidence that this was true; and that the charge excluded from the consideration of the jury the question whether or not there was any sufficient legal excuse for not obtaining a warrant before undertaking to make the arrest. Other instructions to the jury are excepted to on the ground that they likewise presented to the jury a theory of the case not authorized by the evidence and the law applicable thereto. These exceptions to the charge of the court seem to call for a somewhat extended review of the law relating to the right of a municipal peace officer to arrest, without warrant, a person who may have committed a violation of a municipal ordinance, not in the immediate or constructive presence of the officer.

At common law, certain officers were authorized to arrest without warrant under particular circumstances. Hale says: "There are certain officers and ministers of public justice that virtute officii are empowered by law to arrest felons, or those that are suspected of felony, and that before conviction, and also before indictment. And these are under a greater, protection of the law in execution of this part of their office, upon these two accounts: (1) Because they are persons more eminently trusted by the law, as in many other acts incident to their office, so in this; (2) because they are by law punishable, if they neglect their duty in it. And therefore it is all the reason that can be that they should have the greatest protection and encouragement in the due execution of their office, since their actings herein are not arbitrary, but necessary duties, not permissions, and under severe punishments in their neglect thereof. And hence it is that these officers that are thus intrusted may without any other warrant, but from themselves, arrest felons and those that are probably suspected of felonies; and if they be assaulted and killed in the execution of their office, it is murder. And, on the other side, if persons that are pursued by these officers for felony or the just suspicion thereof, nay for breach of the peace or just suspicion thereof, as night walkers or persons unduly armed, shall not yield themselves to these officers, but shall either resist or fly before they are apprehended, or, being apprehended, shall rescue themselves and resist or fly, so that they can not be otherwise apprehended, and are upon necessity slain therein, because they can not be otherwise taken, it is no felony in these officers or their- assistants that upon inevitable necessity kill them, though possibly the parties killed are innocent, for by their resistance against the authority of the.king in his officers they draw their own blood upon themselves. The officers that I herein principally intend are: (1) Justices of the peace; (2) sheriffs; (3) coroners; (4) constables; (5) watchmen. And when I mention these I also include all that come to their aid and assistance; for every man in such cases is bound to be aiding and assisting these officers, upon their charge and summons, in preserving the peace and apprehending of malefactors, especially felons.” 2 Hale’s P. C. 85-6. The term “policeman” has been held to be the legal equivalent of “watchman” at common law, with respect to the power to arrest without a warrant. State v. Evans (Mo.), 61 S. W. 590. 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. That section reads as follows: “An arrest may be made for a crime by an officer, either under a warrant, or without a warrant if the offense is committed in his presence, or if 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.” In Thomas v. State, 91 Ga. 206, and in Brooks v. State, 114 Ga. 6, it was held that this section was applicable to municipal peace officers, such as a pdiceman or town marshal. The law is very jealous of the liberty of the citizen. In proportion as the offense is less serious, the greater the formality-prescribed for the exercise of the power to deprive the citizen of his liberty. If the offense be a felony, an arrest may be made by’ a private person or an officer, without a warrant, if the citizen suspected of the felony is endeavoring to escape; .but if the offense be a misdemeanor, then before even an officer will be authorized to arrest, he must bring himself within the exception provided in the Penal Code, §896. It has been held that the prosecution of one charged with the violation of a municipal ordinance is not a “criminal case,” within the meaning of that clause of our constitution which preserves the right of trial by jury. Williams v. City Council, 4 Ga. 509; Floyd v. Commissioners, 14 Ga. 354. On the other hand, such a prosecution has been held to be a “criminal case,” within the meaning of the statute providing within what time a bill of exceptions must be tendered and signed. Barnett v. Atlanta, 109 Ga. 166. But whether the violation of a municipal’ordinance be a crime in the usual sense of the term, or merely an offense against the public, to be kn.own by some more appropriate name, the citizen can not be deprived of his liberty because of his infraction of the ordinance, unless at common law he was liable to arrest or .the power to arrest is given by statute. Under the citation from Hale, the power to arrest for such a minor offense, without a warrant, did not exist at common law. Therefore it must depend upon statute; and there is no statute, of which we are aware, authorizing a municipal police officer to make an arrest save in compliance with the terms of the above-cited section.of our Penal Code. As to the right to arrest without a- warrant, under the common law or the •charter power conferred upon a municipality, see Yoorhees on Arrest, §112 et seq., and McQuillin on Munic. Ord. §306. That the infraction of a municipal ordinance may not amount to either a felony or a misdemeanor, but is merely to be regarded as a violation of a municipal precept touching appropriate and becoming.conduct •on the part of the citizen, does not dispense with the requirements of the law with regard to issuing a warrant for his apprehension. That he has committed a very slight offense affords no reason for treating him as a criminal who has forfeited his personal right of liberty and who may therefore be arrested without any formality whatsoever. The suggestion may be made that it is inconvenient ■or impracticable to procure a warrant before making the arrest of such an offender, especially in a large city where there would be difficulty in ascertaining his whereabouts and serving a warrant upon him. But the obvious reply to this suggestion is that our C-eneral Assembly has not as yet seen fit to authorize police officers to deprive a citizen of his liberty at their own time and pleasure upon bare suspicion or upon mere information that he has been guilty of the violation of an ordinance of the municipality. Again, it may he said that, in incorporating certain towns and cities, no provision has been made by the legislature for the issuing of warrants for the apprehension of offenders against municipal ordinances. If this be true in point of fact, then the effect of such •omission would be, not to abrogate the general law on the subject •of arrest, or to deprive the citizen in any measure of his right of personal liberty, but to afford the municipality no means of bringing the offender to account other than those for which the general law makes provision. The courts can not undertake to supply the omissions of the legislative department of the State, but are bound to enforce the law as they find it.

So far as the town of Lumpkin is concerned, the somewhat recent act whereby it was granted a new charter unquestionably confers upon the mayor the power to issue warrants for the apprehension of persons charged with a Aiolation of the ordinances of that toAvn. Acts of 1902, p. 492, sec. 9. In Williams v. Sewell, 121 Ga. 665, this court held, that “A municipal charter which imposes upon the mayor the duty of seeing that the ordinances of the town are faithfully executed, and confers upon him jurisdiction to try all persons charged with violating such ordinances, authorizes the mayor to issue a warrant for the arrest for trial of one charged with the violation of an ordinance; and this is true notwithstanding the charter does not in express terms authorize the mayor to issue a warrant for such purpose.” So, it would seem, there was not “ likely to be a failure of justice for want of an officer to issue a warrant,” the mayor being in town, though “at home sick.” That he was so incapacitated by his illness as not to be able, on the afternoon of the arrest or upon the following day, to attend to official business does not appear. The name and identity of the accused were known; haste was not imperative. Certain it is that the arresting officer did not undertake to make the arrest because of the impracticability of getting the mayor to issue a warrant; because he did not pretend that he based his right to apprehend the-defendant upon any such ground. The case appears to have been tried upon the theory that the officer had a right, without a warrant, to arrest the defendant as an offender who was seeking to-escape from justice, not one who had merely evaded an illegal arrest, in the first instance and who had afterwards resisted with unlawful force a renewal of the officer’s unauthorized attempt to place him in. custody. The charge of the court was not adjusted to the facts-brought to light by the evidence. So far as appears, the defendant never manifested any intention of leaving the community or going beyond the corporate limits of the town. He refused to stop when ordered by the marshal to do so, and evaded the attempted illegal arrest by running off in the direction of his home. Some half or three-quarters of an hour afterwards, he again appeared on the public square, thereby negativing any impression the marshal may-have had that he intended to become a fugitive from justice. When first approached by the marshal, the defendant could either have resisted the unlawful arrest by the use of all necessary force, or have avoided the attempted. arrest by running away from the officer. Thomas v. State, 91 Ga. 205-6. He chose the latter alternative and successfully eluded arrest. After arming himself with a gun, he reappeared on the public square, with what intention does not affirmatively appear. He was not an “escape,” nor was he making any attempt then to escape, but was quietly sitting down and conversing with some other negroes. When the officer suddenly confronted him, he immediately shot at but missed him. He may have intended when he returned with his gun to resist any renewed attempt to arrest him, but he indicated no intention to become a fugitive from justice, until he committed the grave offense of unlawfully .shooting at the officer..

The court was requested to charge the jury that “every man, however guilty, has the right to shun an illegal arrest by flight; and when an attempted arrest is illegal and the defendant prevents such illegal arrest by flight, the exercise of this right of flight should not and would not subject him to be arrested as a fugitive endeavoring to escape.” This request was pertinent to the case and should have been given; for the jury should have been instructed that the evasion of the illegal arrest, which the defendant accomplished by running away from the officer when first approached by him about sundown, did not render the defendant a fugitive from justice whom the officer might thereafter arrest without a warrant as an “escape” whenever and wherever the officer might find him. If one accused of a misdemeanor or a violation of a municipal ordinance may oppose an illegal arrest with commensurate resistance, or. by flight, it would be begging the question to say that an evasion of an illegal arrest by flight would authorize his arrest as a fugitive endeavoring to escape.

In granting a new charter to the town of Lumpkin in 1902, .the General Assembly provided that the mayor should “have control of the marshal and his deputies and of all special officers” appointed for any purpose, and that he might “cause the arrest and detention •of all rioters and disorderly persons in said town before issuing his warrant therefor.” Acts of 1902, p. 492. But the marshal was not clothed with any authority in the matter of arrest, in addition to that he might exercise under the general law, while not acting in concert with or under specific orders.from the mayor. It is not to be presumed the General Assembly was unacquainted with the general law on the subject of arrest, or acted unadvisedly in ignorance of the local conditions in that town, when the above-mentioned provision was made with respect to the circumstances under which the formality of issuing a warrant could be dispensed with. We must be content with the scheme for bringing petty offenders to justice which the legislature has, in its wisdom, seen fit to adopt.’

2. To slay an officer who is without authority of law to make an. arrest for a misdemeanor, where the motive of the slayer is merely to avoid an illegal arrest, would be manslaughter, and not murder. Croom v. State, 85 Ga. 718; Williford v. State, 121 Ga. 176. While one who has committed a misdemeanor majr use proportionate force in resistance to an illegal arrest, yet if the means employed to prevent his detention are disproportionate to the effort made to take him into custody, such disproportionate resistance is unlawful; and if such unlawful resistance culminates in a'homicide, the party seeking to avoid arrest is guilty of voluntary manslaughter. If he fires at the arresting officer with a gun and misses him, and such resistance is unnecessary to defend himself from an illegal arrest, the-offense is no more than an unlawful shooting at another not in his defense, and does not amount to an assault with intent to murder. Thomas v. State, supra. From the evidence it appears that the marshal attempted no bodily harm in bringing about the arrest of the defendant,' and that the defendant’s firing at him with a deadly weapon was without excuse. The defendant claimed in his state-_ ment that the discharge of the gun was accidental. The marshal’s testimony indicated that it was intentionally discharged at him. Accordingly, the case made out by the evidence was one of unlawfully shooting at another, while the defendant’s statement presented the defense of accidental shoofeng. The verdict of the jury, finding the defendant guilty of, the offense of assault with intent to murder, was wholly unauthorized.

3. The ordinances of the town, defining disorderly conduct and prescribing the duties of the marshal, were relevant as showing the authority of the marshal to make arrests for misconduct such as that he was informed the defendant was guilty of. But while the marshal had authority to make arrests for violations of the ordinances, he could not lawfully make an arrest without a warrant save under the circumstances enumerated in the code section above cited. The purpose of that section is to guard the citizen against summary apprehension for a petty offense not committed in the presence of the arresting officer, and with the commission of which he is not charged under oath by the person who makes complaint to the officer, when the circumstances are not such as to justify an arrest without first procuring a warrant.

Judgment reversed.

All the Justices concur, except Beck, J., not presiding.