Coleman v. State
| Decision Date | 26 January 1905 |
| Citation | 49 S.E. 716,121 Ga. 594 |
| Parties | COLEMAN v. STATE. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
1. A bail, in person or by duly authorized agent, may lawfully recapture his principal.
2. Without proof of authority so to do, the son of the bail cannot empower a third person to make such arrest.
3. Unless properly deputized, a private citizen cannot justify an arrest merely because he has in his possession a warrant for the arrest of the person sought to be taken.
4. Treating the arrest as having been made without warrant of law or authority of the bail, the case is to be governed by the law of assault, culminating in a homicide by the original wrongdoer.
5. So treating it, if the defendant began the unlawful arrest with an intent to kill if necessary to make it effective, and by a show of a deadly weapon put the deceased in the fear of his life, and the latter thereupon drew and fired, the defendant having provoked and created a necessity, could not meet the same, but would be guilty of murder if under such circumstances he took the life of the party legally resisting the illegal arrest.
6. A citizen, being unlawfully arrested, has a right to resist force with force proportioned to that being used in detaining him.
7. If the force used in repelling the unlawful arrest was excessive and disproportioned to that needed to avoid detention, such force is not to be treated as lawful resistance, but as an unlawful attack.
8. If an unauthorized person seeks to make an arrest, but does nothing to put the other in real or apparent danger of life and if the mere assault is met by drawing and firing a deadly weapon upon the person making the arrest, the latter, not having forfeited his right to live, and not having created a legal necessity for such deadly resistance, may defend himself against the excessive and unjustifiable counter assault.
9. Under the evidence, there was no question of killing in hot blood. The real issue was whether the defendant was guilty of murder, or justified on principles of self-defense. It was error to give the law of manslaughter in charge.
Error from Superior Court, Emanuel County; A. F. Daley, Judge.
Elzie Coleman was convicted of murder, and brings error. Reversed.
Herrington & Lee, L. J. Cowart, and Saffold & Larsen, for plaintiff in error.
B. T Rawlings, Sol. Gen., and G. H. Howard, Sol. pro tem., for the State.
LAMAR, J. (after stating the foregoing facts).
1, 2. Where one accused of crime is released on bond, he is transferred from the custody of the sheriff to the legal, but friendly, custody of the bail, whose "dominion is a continuance of the original imprisonment," but they may at will surrender him again to the custody of the law. If the accused refuses to surrender, the bail can seize and hold him in order to make delivery in discharge of the bond. But the surety may be a woman, or a man physically too weak to cope with the accused, or the person charged with the crime may be at a distant point and out of the reach of his bondsman. For these and other reasons, the bail may lawfully deputize an agent to seize the body and deliver him to the custody of the sheriff. Clark v. Gordon, 82 Ga. 613, 9 S.E. 333; Pen. Code 1895, § 935; Taylor v. Taintor, 16 Wall. 371, 21 L.Ed. 287. While this is true, a new trial cannot be granted here because of the court's refusal to give the charge requested as to the right to make such arrest by an agent. There was no evidence in the present case to show that the bail had appointed Coleman to recapture Griffin, and nothing to show that he authorized his son, R. E. Collins, to make such arrest, or delegated to him any power to appoint agents for that purpose.
3. The warrant which R. E. Collins delivered to Coleman was in usual form, and directed as required by the Penal Code. The defendant, Coleman, was not himself a peace officer, not a member of a posse, and had not been deputized to execute the warrant. The fact that he had it in his possession conferred upon him no authority whatever. The arrest, therefore, is to be treated as one made by a private citizen. Its legality would then depend upon showing that it was made under the circumstances set out in Pen. Code 1895, § 900.
4. There does not appear to have been any conversation between Coleman and Griffin--no demand for a show of the warrant, or statement of the authority under which the arrest was made. There was no reply to indicate whether it was at the instance of the bail, under the warrant for resisting legal process, because of a felony known to have been committed, or to prevent an escape therefor. We must assume, from the verdict, that the jury found that Coleman did not have authority to make the arrest. If so, the remaining questions must be treated on the idea that the law of arrest is out of the case, and that Coleman was guilty of an assault.
5. At an early day it was held that, if the supposed officer purposely kills the other party for not submitting himself to an illegal arrest, it will, generally speaking, be murder. East's P. C. 312; Foster's Crown Law, 271. This principle, however, must be subject to many exceptions. If the circumstances are such as to show that there was no malice--if the person attempting such unauthorized arrest in good faith believes that he has the right to take the person sought to be detained, and, in the course of the struggle and in the heat engendered by the altercation, he takes the life of the person sought to be arrested--the modern cases seem to hold that he would only be guilty of manslaughter. But if the arrest was not only unauthorized, but was begun with the intent to kill, there would be malice. The killing at the end of a struggle which commenced with a felonious intent to...
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