Luffman v. State, (No. 6296.)

• Decision Date: 14 April 1928
• Docket Number: (No. 6296.)
• Citation: 143 S.E. 371,166 Ga. 296
• Parties: LUFFMAN . v. STATE.
• Court: Georgia Supreme Court

166 Ga. 296

143 S.E. 371

LUFFMAN .

v.STATE.

(No. 6296.)

Supreme Court of Georgia.

April 14, 1928.

Rehearing Denied May 19, 1928.

(Syllabus by Editorial Staff.)

Atkinson and Hines, JJ., dissenting.

Error from Superior Court, Gordon County; C. C. Pittman, Judge.

E. R. Luffman was convicted of murder, and he brings error. Affirmed.

E. R. Luffman was indicted for the murder of Kyle Lee Arwood. The evidence introduced by the state tended to show that the defendant, a bailiff in Gordon county, attempted to arrest the deceased in Gordon county without a warrant; that the deceased demanded to know by what authority the arrest was made, to which the defendant replied that he did not have a warrant, but that a warrant had been issued in Whitfield county for his arrest, and that he had orders to arrest him; that the deceased refused to be arrested without exhibition of a warrant. The defendant took hold of the deceased by the arm and drew his pistol, and the deceased still resisted, after which the defendant again drew his pistol and shot the deceased, inflicting the wound from which he died. The accused was convicted, with a recommendation to mercy. He excepted to the refusal of a new trial.

The tenth ground of the motion for new trial sets out certain parts of the evidence and of the defendant's statement before the jury as follows:

"Witness Deck being on the stand, question by Mr. Lang: 'What, if anything, did you tell the defendant as to deceased's character, and as to him being a dope fiend, and his reputation for violence?

" 'Court: Leave that out until some overt act on the part of the deceased is shown. The Supreme Court has held that it is just as much a crime to kill a big man and a violent man as it is a little man or a peaceable man.

"'Mr. Lang: Your honor, we contend that we have already shown an overt act on the part of the deceased toward the defendant, and we are just about to show a communication of thefart of deceased's violent and turbulent character, a warning to the defendant of the fact that it was necessary to watch the deceased, that he was a dangerous man, a violent and turbulent character. We will show that that was communicated to him then. ^v

"'Court: Until some overt act of violence is shown by the deceased to the defendant, whether he was violent or whether he was peaceable would be immaterial.'

"The evidence referred to, which had been admitted and was then before the jury, which movant insists authorized the admission of such evidence rejected by the court, is as follows, to wit: Britt Davis, witness for the state, on cross-examination, had testified, among other things: 'They [the deceased and defendant], stood there and scuffled something like five or ten minutes before the shooting took place, I expect, something like that.' W. J. Silvers, witness for the state, on cross-examination, had testified among other things: 'After Mr. Luffman took hold of him [deceased], they stood there ahold of each other and arguing for just a fenuw mites before the shooting took place; it wasn't ten minutes, wasn't over five minutes.' Charley Deck, witness, for the defendant, had testified, among other things: 'I told Kyle Lee [deceased] that if I was him I wouldn't resist that man. * * * I says, "I would [not] act a fool and get into trouble. I would just submit and go on with him." Kyle Lee said he be God-damned if he would do it. Mr. Luffman had his pistol in his left hand, and Arwood says: "If you don't put that Goddamned thing up, I will take it away from you and beat your God-damned brains out." Arwood was standing kind of in this manner, and just as he said that he set that foot up [indicating]. * * * Arwood says, "If you don't put that God-damned thing up, I will take it away from you and beat your brains out;" and he gripped his fist, and pushed his foot out toward Luffman. They were not further apart than that [illustrating], and Luffman had his pistol in his left hand, and, just as he said what I have testified, and set his foot out, Luffman plugged him [witness illustrating position and movement of parties], just like that.'

"The defendant in his statement had said: 'Well, on this particular occasion Mr. Dick come down there and told me * * * that he wanted me to arrest this man; said they wanted him in Dalton very bad, and said there was a warrant for him for stealing a.45 Colt's automatic pistol; and he said if we didn't get hold of him he was liable to get away to Tennessee; says, "I want to catch him here;" says, "if he comes here I want you to be sure and take him up for me." He said that he had passed him out here on the road. He informed me that he had a warrant for him; he said he had a warrant for him for stealing that pistol; and when he come up there he come in a car with somebody. I don't know who he was in the car with, some fellow that went toward Sonoraville, and Mr. Arwood got out of the~ car, and Mr. Deck says, "There is that boy now that got out of that car, " and says, "He has stopped here." * * * I approached the man just as nice as I could, as I commonly do, to arrest him, and he says, "Have you got a warrant for me?" I told him, "No, sir;" I says, "I ain't got a warrant, but Mr. Deck has;" and he said, "You God-damned old gray-headed son of a bitch, I won't go nowhere with you at all under

no circumstances;" and he just proceeded to push me back. I took hold of him and told him there wasn't no use of doing that. I says, "I want to treat you right; I have always treated or tried to treat everybody right, and I want you to come ahead and see what it is all about; they say they have a warrant for you;" and he give me a shove, and caught hold of me and creened me over, and pushed me back, and when he done that I drew my pistol out in my left hand. I never did take my left hand up then no way; I brought my left hand straight across that way [illustrating]; it was about that high [illustrating], and I didn't have it pointed toward him at all. "Well, " he says, "If you will put up that old pistol back in your pocket I will go with you; I won't resist any further; I will go with you if you will put it back in your pocket;" and I told him I would do that, that that was all I wanted, "I want you to go back to court with, me;" and I dropped the pistol right back down in my pocket, and he told me then, he says, "You couldn't hurt me with that God-damned little popgun if you...