Dixon v. State, 27065.

• Decision Date: 10 October 1938
• Docket Number: No. 27065.,27065.
• Parties: DIXON. v. STATE.
• Court: Georgia Court of Appeals

58 Ga.App. 479

199 S.E. 156

DIXON.

v.STATE.

No. 27065.

Court of Appeals of Georgia,

Division No. 1.

Oct 10, 1938.

Syllabus by the Court.

The question whether the dispossessory warrant had been properly served on the de-fendant, and therefore whether the prosecutor was a trespasser in executing the same, need not be determined in the present case under all of the evidence and the defendant's statement. There appears nowhere in the evidence or in the defendant's statement any contention that the defendant assaulted the prosecutor because of the execution of the warrant, or to prevent any further trespass upon his property. On the other hand it appears from the defendant's own statement that he was not present at the time the warrant was actually executed, that he came to the house because he had information that the prosecutor was there drunk and cursing before his wife and others, that upon his arrival the prosecutor was out in the road leaving the scene, that he (defendant) asked the prosecutor "Was he a white man?" to which the prosecutor replied "Yes, " and that he struck the prosecutor only when and because he attempted to draw his pistol. The jury was authorized to find that the defendant struck the prosecutor with a hammer in anger and with intent to kill, without justifiable cause.

Error from Superior Court, Jackson County; Clifford Pratt, Judge.

Arthur Dixon was convicted of assault with intent to murder, and he brings error. Affirmed.

Geo. W. Westmoreland, of Jefferson, for plaintiff in error.

B. Frank Simpson, Sol. Gen., of Nor-cross, and Davis & Stephens, of Jefferson, for the State.

GUERRY, Judge.

The defendant was indicted for assault with intent to murder one J. S. Moore. It appears that on the day in question, Moore, acting as a constable and by virtue of a dis-possessory warrant issued by another as justice of the peace, went to the residence of the defendant, moved his furniture and other personal belongings out into the yard, and nailed up the doors to the house. The position is taken in this court that the acts of Moore in the execution of the dispos-sessory warrant constituted a wilful tres pass--this for the reason (it is contended) that the dispossessory warrant was not served by a duly-qualified officer authorized to perfect service, nor had it in point of fact been served upon the defendant in the manner contemplated by the Code, § 61-306, and it is insisted that this being true the defendant had the right to resist such forcible and...