Gordy v. State, 36143
| Decision Date | 11 April 1956 |
| Docket Number | No. 2,No. 36143,36143,2 |
| Citation | 93 Ga.App. 743,92 S.E.2d 737 |
| Parties | W. T. GORDY v. The STATE |
| Court | Georgia Court of Appeals |
Syllabus by the Court.
It appearing from the evidence that the defendant, a peace officer, while making a lawful arrest, killed the person whom he was seeking to arrest under the fears of a reasonable man that a felony was about to be committed upon himself or a fellow officer, the killing was justified.
The defendant was indicted in the Superior Court of Jeff Davis County for the offense of murder and convicted of voluntary manslaughter. Undisputed evidence discloses that the defendant was a police officer of Hazlehurst; that, on the night of the homicide, this officer was informed that Phillip Truett, the victim, was drunk, 'crazy out of his head,' had forcibly taken a young lady from the informant at pistol point, and had driven off with her; that the informant, the defendant, and others drove around town in search of the victim for some time, but were unable to find him; that later the defendant and another police officer observed the defendant in his automobile and pursued him in a police car so marked on each side and equipped with siren and blinker light; that the victim drove to his home at a speed of approximately 45 to 50 miles per hour, during which time on two occasions his car wobbled across the center line of the road in such way as to indicate to the pursuing police officers he was operating his automobile while under the influence of intoxicants; that, during the chase, the police officers sounded the siren and fixed the red blinker light on the car of the victim; that, upon the victim stopping his car in front of his home, the police car drove up to the left of it, the victim got out of the car with a pistol in his hand and pointed it at the police officers; that Officer Beckworth, the driver of the police car, in drawing his pistol hit it against the steering wheel and dropped it, but that the defendant fired five shots into the body of the victim killing him instantly. The informant testified that, at the time he told the defendant about the conduct of the victim and they started off to look for him, the informant stated that he did not believe the victim would stop if they came upon him, and that the defendant stated he would stop him one way or the other, and would stop him if he had to put a bullet in him. Other witnesses testified that the victim had been under medical treatment for alcoholism for the past two weeks prior to the homicide; that they had been taking care of him under the direction of his doctor at a place some distance in the country from Hazlehurst; that, while he was there, he had a pistol in his possession and fired all of his cartridges in target practice; that the victim owned a bottle of vodka, which was returned to him on his promise that he would not drink it; and that they returned to Hazlehurst on the evening of the night of the homicide. A pistol was found on the ground by the side of victim by witnesses who came immediately to the scene. It was empty, but the defendant and his fellow officer had no way of knowing this fact at the time the shots were fired. The defendant made a statement concurring in the testimony of Officer Beckworth, to the effect that the victim was during the latter chase driving in such manner as to indicate he was under the influence of intoxicants. In his statement he insisted that the killing was necessary in his own defense and that of his fellow officer. He also concurred in the testimony of his fellow officer and another witness that he did not make a statement to the effect that he would stop the victim one way or another or that he would stop him if he had to put a bullet in him, or anything to that effect.
On conviction the defendant filed a motion for a new trial on the general grounds, which was later amended by the addition of one special ground, and error is assigned on the denial of this motion.
Charles W. Heath, Hazlehurst, George Jordan, Ewing & Farrar, Douglas, for plaintiff in error.
W. Glenn Thomas, Sol. Gen., Jesup, for defendant in error.
The general grounds of the motion for a new trial and the special ground are considered together, since the question presented is whether or not the evidence authorized a verdict of guilty of voluntary manslaughter, and whether or not the trial court properly gave this principle of law in charge to the jury. The defendant's position is that the homicide was justified under Code, § 26-1011, which provides in substance that justifiable homicide is the killing of a human being in self-defense against one who manifestly intends or endeavors by violence or surprise to commit a felony thereon; and Code, § 26-1012, which provides for the rule of apparent rather than actual necessity, as follows: 'It must appear that the circumstances were sufficient to excite the fears of a reasonable man, and that the party killing really acted under the influence of those fears, and not in a spirit of revenge.' A person making a lawful arrest is justified in killing under the fears of a reasonable man that a felony is about to be committed upon himself or his fellow officer. Adams v. State, 72 Ga. 85. It cannot be seriously argued but that an officer about to make an arrest, which intention was made known to the person sought to be arrested, may reasonably fear a felony is about to be committed upon himself and others in the automobile, when the person pursued and sought to be arrested suddenly halts his car and jumps out to confront his pursuers, while at the same time pointing a pistol at them. Accordingly, if this is the only construction to be put on the evidence, the officer was entirely justified in firing to protect his life and that of his companion. Justification, if established under these Code sections, should always result in acquittal. Lewis v. State, 79 Ga.App. 326, 53 S.E.2d 590.
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