Finch v. State, 38025

• Decision Date: 21 January 1960
• Docket Number: No. 38025,No. 2,38025,2
• Citation: Finch v. State, 112 S.E.2d 824, 101 Ga.App. 73 (Ga. App. 1960)
• Parties: Ernest FINCH v. STATE
• Court: Georgia Court of Appeals

Page 824

112 S.E.2d 824

101 Ga.App. 73

Ernest FINCH v.STATE.

No. 38025.

Court of Appeals of Georgia, Division No. 2.

Jan. 21, 1960.

Neville & Neville, Wm. J. Neville, W. G. Neville, Statesboro, for plaintiff in error.

Robert S. Lanier, Solicitor, Statesboro, for defendant in error.

Syllabus Opinion by the Court

TOWNSEND, Judge.

1.Code§ 58-608 provides that the offense of public drunkenness 'must be made manifest by boisterousness, or by indecent condition or acting, or by vulgar, profane or unbecoming language, or loud and violent discourse of the person or persons so intoxicated.''Mere drunkenness, manifested by extreme stupor or deep sleep, is not a violation of the state law.'Howell v. State, 13 Ga.App. 74, 77, 78 S.E. 859, 860.It was not an offense under the terms of this section, or otherwise so far as the evidence in this case shows, for the defendant to have pulled his car off to the side of a public road and to be sleeping therein, even though he may have been extremely intoxicated at the time, and accordingly at the time the police officers awoke and arrested the defendanthe was guilty of no offense.Ramey v. State, 40 Ga.App. 658, 151 S.E. 55;Pogue v. State, 84 Ga.App. 595, 66 S.E.2d 647;Jeffery v. State, 94 Ga.App. 434, 95 S.E.2d 290.

2.Officers may arrest without a warrant only if the person arrested has committed an offense in his or their presence, 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.Code§ 27-207.The officers here had no right, so far as is shown by the evidence in this case, to awaken the defendant and force him to alight from his automobile, search him, and place him under arrest.The arrest was therefore illegal, and the defendant had the right to resist in a proper manner.One of the witnesses testified: 'The disturbance I am talking about occurred during the time I was arresting him, and after I arrested him and put him in the car.He was drunk, staggering and cursing.He wasn't disturbing anybody until I disturbed him and woke him up * * * He was fighting, he didn't want to be searched and he said we was laying for him, picking on him and he was getting tired of it, he didn't want to be messed with and he didn't want me to arrest him * * * He snatched loose and I had to get hold of him and search him * * * When I got him in the car there was a lot of talking, he was cursing me and carrying on all the way to town.'The other witness testified: 'All I remember him saying was that he was tired of the sheriff and police picking on him and bothering him * * * Mr. Finch cursed there and he talked in a tone like drunks do, loud vulgar language.Mr. Finch was drunk at that time * * * The disturbance took place when he didn't want us to search him and get him out of the car and get him in the sheriff's car * * * I did not ride back with the sheriff and Mr. Finch and so I don't know what took place in the car between them.'Aside from the above testimony there is nothing to indicate what words the defendant used to the sheriff or police officer, but whatever he said was said after the illegal arrest was made, and during the course of or after the illegal search of the defendant, and during the time he was in custody.Where one is arrested for public drunkenness without a warrant, and is not manifesting his intoxication to the arresting officer in any of the methods set out in the statute, the arrest is illegal and is 'an assault by the arresting officer upon the person arrested.It constitutes legal justification for the employment by the person arrested of force sufficient in amount to avoid an arrest and...