Delegal v. State
| Decision Date | 25 January 1900 |
| Citation | 35 S.E. 105,109 Ga. 518 |
| Parties | DELEGAL v. STATE. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
1. A private person is authorized to make an arrest for a misdemeanor only where the offense is committed in his presence or within his immediate knowledge. It was therefore error, on the trial of a person charged with the homicide of one who had attempted to arrest him, where the evidence clearly showed that the deceased and another attempted to arrest the accused for a misdemeanor two days after the commission of the offense, and that the deceased and his companion were private persons, acting without a warrant, to give in charge to the jury the law authorizing officers to make arrests without warrants; and it was especially erroneous to instruct the jury, in effect, that a private person might arrest where "it was reasonably proper to do so in order to prevent a failure of justice, for the want of an officer to issue a warrant." For the same reason it was error to charge: "Whether, under all the circumstances, including the facilities for obtaining a warrant, according to the spirit of the law, there was or was not cause for attempting the arrest, is a question, after all, for you to determine."
2. It was error, in such a trial, to allow a witness to give his opinion as to what would have been the result to him and the sheriff if they had persisted, two days before the homicide in an effort to remove a prisoner from the jail to the railway station against the will of a mob, of which the accused was alleged to have been a member.
3. Where there was no evidence of any mutual combat between the deceased and the accused preceding the homicide, it was error to give in charge to the jury the provisions of section 73 of the Penal Code.
4. Though, in the statement of one on trial for murder, he may have used an expression which, at most, was merely susceptible of the construction that he had consented for the deceased and another, who at the time of the homicide were threatening, without lawful authority, to take him into custody, to enter his house for that purpose, yet, where it affirmatively and positively appeared from the evidence that neither the deceased nor the other entered the house in consequence of any such alleged consent, it was error to submit to the jury any question as to whether or not their entering the house was upon the invitation, tacit or otherwise, of the accused.
Error from superior court, Effingham county; Paul E. Seabrook Judge.
John Delegal was convicted of homicide, and brings error. Reversed.
Robt. J. Travis, Twiggs & Oliver, and John L. Travis, for plaintiff in error.
Livingston Kenan, Sol. Gen., and J. M. Terrell, Atty. Gen., for the State.
The record discloses that on August 23, 1899, there was an alleged riot in the town of Darien, Ga. On the next day the mayor of Darien swore in Hopkins and Townsend for the purpose of making the arrest of one of the rioters. They subsequently saw the sheriff of the county, informed him what the mayor had done, and told him that they intended to arrest John Delegal. The sheriff told them to "go ahead." They left Darien some time on the afternoon of the 24th, stopped for the night at Hopkins' house, and at 2 o'clock in the morning started for the residence of Delegal, which was 18 miles from Darien. They arrived at about daylight, aroused the occupants of the house, announced who they were, and stated that they had come to arrest Delegal. He inquired as to the reason for his arrest, and was told that it was because of his participation in the riot in Darien. He asked if they, had a warrant. They replied that they had not, but that they had been sent by the sheriff. Delegal refused to be arrested, but proposed that he be allowed to take the train to Darien at 11 o'clock on that day, and surrender himself to the sheriff. They declined to agree to this, and informed him that they intended to carry him to Darien with them; assuring him at the same time that they would do him no personal injury. Townsend told him they intended to arrest him, and would not "have any long talk" about it. Delegal replied, according to the evidence for the state, "We will see about that." In his statement made on the trial, Delegal said that he finally told Hopkins and Townsend: --and then told his brother to unlatch the door, that he might "see what he was going to do." His offer to go with them, if the remark made amounts to that, seems not to have been heard by Hopkins, the survivor. As the door was unlatched, Hopkins pushed it open and stepped into the house, with the remark, "I am not afraid of you." At this time Delegal appears to have been still at the window, through which he had been conversing with Hopkins. As the latter entered the house, Delegal left the window, retreated to the back of the room, and seized his gun. As Hopkins entered the house, Townsend, the deceased, came up the steps, and upon the porch or piazza, when Delegal shot and killed Townsend, and shot at Hopkins, wounding him slightly. Delegal, in his statement, said that when he reached the corner of the room he heard some one say, "I done killed one son of a bitch, and I don't mind killing another." He claims that he then saw Townsend throw up his gun as if to shoot, whereupon he shot Townsend. This is, in substance, the material part of the testimony. Under this evidence, and the charge of the court, the jury returned a verdict of guilty. A motion for a new trial was made and overruled, and the accused excepted.
1. The court charged the jury upon the law which authorizes officers to arrest persons for misdemeanors or felonies, with or without a warrant. This was excepted to, and made the basis of two grounds of the motion for new trial. The evidence clearly showed that neither Hopkins nor Townsend was an officer of the state or county. They were not legally appointed, by any person authorized to make the appointment as officers to make arrests. We have no knowledge of any law which authorizes the mayor of Darien to appoint deputy sheriffs to make arrests, or to administer the oath of office to deputy sheriffs. Nor do we know of any law which authorizes the sheriff, after an oath has been administered by such mayor, to send the persons thus sworn in to make arrests for a misdemeanor. Under all the evidence, these men were nothing more than private individuals. It is a well-settled principle of the law of this state, and, as far as we are advised, of all other jurisdictions, that a private individual cannot make an arrest for a misdemeanor unless the offense is committed in his presence or within his immediate knowledge. Our Penal Code (section 900) declares that "a private person may arrest an offender if the offense is committed in his presence or within his immediate knowledge; and if the offense is a felony, and the offender is escaping, or attempting to escape, a private person may arrest him upon reasonable and probable grounds of suspicion." The offense for which the accused was sought to be arrested was a misdemeanor. It was not committed in the presence of either Hopkins or Townsend; nor, as far as appears from the evidence, did either of them have any immediate knowledge of the offense. Hopkins, the survivor, was doubtful, according to his own testimony, as to whether he was in Darien at all on the day of the alleged riot, but, in the latter part of his testimony, states that he believes he was there in the afternoon, when the troops arrived. At that time it appears that the riot, if there had been one at all, was over. We think, therefore, that it was error to give in charge the law relative to the authority of officers to make arrests. There is a difference between the power of an officer and that of a private individual to arrests without a warrant. An officer may make an arrest 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 officer to issue a warrant." Id. § 896. It was especially erroneous to give in charge the law...
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Smith v. State
...it is error for the trial judge to give section 73 in charge to the jury. James v. State, 123 Ga. 548, 51 S. E. 577; Delegal v. State, 109 Ga. 518-524, 35 S. E. 105; Freeman v. State, 112 Ga. 48 (3), 37 S. E. 172. In order for section 73 to be applicable, in other words, in order for mutual......
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...to the jury. See Powell v. State, 101 Ga. 9, 29 S.E. 309, 65 Am.St.Rep. 277; Dover v. State, 109 Ga. 485, 34 S.E. 1030; Delegal v. State, 109 Ga. 518, 35 S.E. 105; Stubbs v. State, 110 Ga. 916, 36 S.E. Wheeler v. State, 112 Ga. 43, 37 S.E. 126; Freeman v. State, 112 Ga. 48, 37 S.E. 172; Mel......
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Bivins v. State
... ... Powell v ... State, 101 Ga. 9, 11(6, 7), 29 S.E. 309, 65 Am.St.Rep ... 277; Teasley v. State, 104 Ga. 738, 30 S.E. 938; ... Parks v. State, 105 Ga. 242(3), 31 S.E. 580; ... Smith v. State, 106 Ga. 673(3), 32 S.E. 851, 71 ... Am.St.Rep. 286; Delegal v. State, 109 Ga. 518(3), 35 ... S.E. 105; Stubbs v. State, 110 Ga. 916, 36 S.E. 200; ... Ragland [200 Ga. 735] v. State, 111 Ga ... 211(3), 36 S.E. 682; Wheeler v. State, 112 Ga. 43, ... 44, 37 S.E. 126; Freeman v. State, 112 Ga. 48(3), 37 ... S.E. 172; Mell v. State, 112 Ga ... ...
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...error for the trial judge to give section 73 [§ 26-1014] in charge to the jury. James v. State, 123 Ga. 548, 51 S.E. 577; Delegal v. State, 109 Ga. 518-524, 35 S.E. 105; Freeman v. State, 112 Ga. 48(3), 37 S.E. 172. In order for section 73 to be applicable, in other words, in order for mutu......