Opinion
35595.
DECIDED APRIL 8, 1955.
Voluntary manslaughter. Before Judge Hicks. Haralson Superior Court. December 17, 1954.
Murphy Murphy, Thomas B. Murphy, for plaintiff in error.
Robert J. Noland, Solicitor-General, W. L. Denton, Solicitor-General, contra.
The court did not err in denying the motion for a new trial for any of the reasons assigned, either on the general grounds or the special grounds.
DECIDED APRIL 8, 1955.
L. G. King was arraigned on an indictment for murder and found guilty of voluntary manslaughter with a punishment of not less than one nor more than one year in the penitentiary. He filed his motion for a new trial on the usual statutory grounds, and thereafter amended it by adding four special grounds. The court denied the motion as amended. The defendant assigns error on that judgment.
As to the evidence the record is quite lengthy, and we will set forth only such evidence as regards the verdict found. The deceased, I. L. Hammock, Jr., and his brother were sitting at a counter in a cafe in Bremen, Georgia, at approximately one o'clock in the morning. The defendant was a policeman of Bremen, Georgia. Either the deceased or his brother was drinking coffee and the other had ordered a sandwich. Neither showed any signs of drinking, and there was no boisterousness or disorder in the cafe. The defendant came in and talked briefly with the deceased. The defendant went out of the cafe, as did the deceased and the brother of the deceased. When the three got to the sidewalk, the defendant accused the deceased of being drunk, which statement the deceased and his brother denied. The defendant then struck the deceased in the face. The deceased gave the defendant a rather severe whipping, using nothing but his fist. The brother of the deceased pulled the deceased off of the defendant and escorted the deceased to an automobile. Another policeman, Lewis, came up and arrested the brother of the deceased. The defendant shot at the brother of the deceased as the brother was going toward the jail with Lewis. The defendant walked to the front of the automobile in which the deceased was sitting and shot the deceased through the windshield of the automobile. As stated above, neither the deceased nor his brother had a weapon. The deceased was doing nothing at the time the defendant shot. The fight had been over for three or four minutes when the defendant shot the deceased. The deceased fell out of the automobile, and the defendant went to the deceased and kicked him viciously several times and started to shoot the deceased again, but was prevented from doing so. A doctor testified that there was no evidence of intoxicants about the person of the deceased. There were numerous witnesses (if not all of the witnesses) who testified that the deceased and his brother were not disorderly and were not drinking.
1. It is our opinion that the jury, under the evidence, would have been authorized to convict the defendant of murder. We mention this evidence regarding murder for the reason that, among the special grounds, counsel for the defendant assigns error because the court charged the law with reference to murder. The evidence, as set forth above, amply authorized the jury to return a verdict for voluntary manslaughter.
There is no assignment of error regarding the charge on the law of voluntary manslaughter. However, we state here that the court charged that principle of law correctly.
2. Special ground 1 assigns error because the court charged the law of murder, alleging that the evidence did not authorize the court so to charge. This ground is without merit.
Special ground 2 assigns error on an excerpt from the charge of the court, as follows: "I charge you if the defendant was at the time of the alleged offense a lawful and legally authorized arresting officer of the City of Bremen, and that Bill Hammock and I. L. Hammock, Junior, knew this, then you would determine if the defendant, as such officer, was undertaking to arrest them or either of them for any offense committed or claimed by them by the defendant to have been committed in violation of any lawful ordinance of the City of Bremen, that the deceased and his brother should have submitted to arrest." The error assigned on this excerpt is that a peace officer, like the defendant, is clothed with the authority to arrest one who was in violation of a State law, as well as one in violation of a city ordinance. This is a correct principle of law, but to be authorized to arrest for the violation of a State law it must appear that the officer did not have time to procure a warrant or that the alleged offender was attempting to escape. This was a matter of defense on the part of the defendant, and he did not urge it properly. Moreover, the evidence reveals, as above set forth, that other officers had arrived, and that some time had elapsed since the difficulty between the deceased and the defendant, wherein the defendant had struck the first blow and thereafter killed the deceased while the deceased was sitting in his automobile and while the brother of the deceased had been arrested and was being taken by Officer Lewis to the city hall for the purpose of disposing of the matter. The evidence correctly shows that the jury based their verdict on the ground that the defendant killed the deceased under a sudden heat of passion growing out of the difficulty between the deceased and the defendant, in which difficulty the deceased, with his bare hands, bested the defendant in the difficulty, which from all the evidence it appeared that the defendant, without just cause, provoked. There is no merit in this contention.
Special ground 3 assigns error because the court failed to charge the principle of law to the effect that every person committing an offense in the presence of an arresting officer must quietly submit to arrest, and in the event that the person refuses to quietly submit, the officer has the right to use such force as is necessary to accomplish the arrest. There was no request for such a charge. Then too, in this connection, it must be kept in mind that no arresting officer has any right to kill a person for trying to escape in the commission of a misdemeanor. This ground has no merit.
Special ground 4 assigns error because the court failed to charge that, if the defendant at the time of the alleged offense was an authorized arresting officer of the City of Bremen, and if the deceased was committing a violation of any lawful ordinance of Bremen or any valid law of the State of Georgia, the defendant had the right to arrest the deceased. There was no request for this charge and what we have said in the preceding special ground applies here. This ground is without merit.
The court did not err in denying the motion for a new trial.
Judgment affirmed. Townsend and Carlisle, JJ., concur.