Mullis v. State

• Decision Date: 13 September 1943
• Docket Number: 14602.
• Citation: 27 S.E.2d 91,196 Ga. 569
• Parties: MULLIS v. STATE.
• Court: Georgia Supreme Court

27 S.E.2d 91

196 Ga. 569

MULLIS v. STATE.

No. 14602.

Supreme Court of Georgia

September 13, 1943

[Copyrighted Material Omitted]

Syllabus by the Court.

Under the evidence and the rules stated in the opinion, it was for the jury to find whether the arrest without warrant of the defendant by the deceased city police officer was legal because of the commission of a misdemeanor in the presence of the officer, or because of the violation of a city ordinance in his presence and an arrest within the city limits; or whether the arrest was illegal because no misdemeanor was committed in the presence of the officer, or the arrest for the violation of a city ordinance was made outside of the corporate limits; and for the jury to find whether or not the deceased officer used on the defendant unlawful force such as was not authorized in an arrest for a misdemeanor. It was for the jury to determine under proper instructions from the court whether or not the homicide was murder, or was justifiable because in defense against an actual felony, or was justifiable because committed under the fears of a reasonable man that such a felony was about to be committed and not committed in a spirit of revenge; or was voluntary manslaughter. Accordingly, it was error to charge that 'a person may kill to prevent an illegal arrest only when it is reasonably and absolutely necessary,' since this instruction eliminated the rule of 'reasonable fears' under the Code, § 26-1012; and error to fail to charge that rule; and it was error to fail to charge any rule for determining under what facts and circumstances the resistance by the defendant to the arrest would constitute murder, or would constitute justifiable homicide or voluntary manslaughter.

Blanton Mullis was found guilty, with a recommendation to mercy, of the murder of J. E. Fennell by cutting him with a pocket-knife. Besides excepting on the general grounds, the defendant excepted to an instruction, and to the failure without request, to give any instruction, as to the law of justifiable homicide with respect to the rule of 'reasonable fears' under the Code, § 26-1012; and excepted to the failure to charge, without request, other rules with respect to the right of the deceased as an arresting officer to use force, and the right of the defendant to resist force if there was an unlawful arrest.

According to the State's testimony, the deceased, a policeman of the City of Cadwell, died within a few minutes after being stabbed in the jugular vein above the collar-bone with a pocket-knife, about thirty-nine yards from a negro house; and the homicide occurred inside of the city limits about midnight. Soon afterward, about 12:30 or 1 o'clock, the defendant appeared at a house about one hundred yards away. Two of four persons at this house testified that he then said he had stabbed and 'killed Mr. Fennell,' with a knife; and that the defendant's head was then bleeding in two places, and it looked like some one had hit him. One testified, that 'there were one or two gashes on his forehead and one on the back' of his head; that the witness 'noticed blood coming out of these places, and it appeared to me that some one had hit [him] over his head or beat him pretty good. Those were fresh wounds. They were bleeding. I got close enough to him to wipe his forehead. He said that Mr. Fennell did it.' One of these witnesses said that the defendant was then 'drinking a little'; another, that he 'was under the influence of liquor.' There was testimony for the State, to the effect that when the witness saw the defendant the same evening, but before the homicide, there were 'scratches' on his face, which he then said had been caused by a 'wreck'; and, as a State trooper testified, that when he examined the defendant at the jail on the following night, there appeared to be an old wound on the side of his head, with 'old dried blood there' that did not look like it was made by a blackjack, but 'looked more like a cut, about an inch and a half long, * * * not very deep'; that 'a black-jack will burst the skin, but will leave a bump there; you can knock a man down with it and beat him with it and not kill him.' Two witnesses for the State, who saw the body of the deceased when it was found soon after midnight, testified that his black-jack was in his pocket, and his pistol was in the holster that he wore. A witness for the State testified that after the deceased had arrested a companion of the defendant, on the night of the homicide, the witness heard the defendant say he 'was a good mind to stab' the deceased, but the witness saw no knife. Another witness said that he saw a knife in the defendant's hand, and heard the defendant say he 'was going to stab' the deceased. Both of these two witnesses said that the quoted statements were not spoken to any person, and they were not reported to the deceased policeman. There was no testimony as to any conduct of the deceased manifesting any intoxication until just before the homicide, as hereafter stated; and there was testimony that he had not previously appeared to be intoxicated. One witness testified that at about eleven o'clock on the same night, he had heard the deceased officer tell the defendant, 'I expect you had better go home,' although the defendant 'wasn't doing anything,' and 'there wasn't any trouble between them nor no other word said between them.'

To prove other admissions by the defendant as to the homicide, the State showed by the testimony of the State trooper that the defendant, when arrested on the day after the homicide, said 'he killed Mr. Fennell with his knife'; but that this statement was coupled with an additional one, made in the conversation with regard to a head wound on the defendant, that 'he had been hit over the head the night before, * * * he didn't know what hit him, * * * it was dark; * * * that Mr. Fennell had hit him a couple of times, but he didn't see him, * * * he didn't know what Mr. Fennell hit him with.' Although there was other testimony by the State as to what occurred just before or at the time of the homicide and was heard at that time, there was no eye-witness.

For the defendant, some evidence indicated that the attempted arrest occurred outside of the city limits. There was no evidence from either side as to any city ordinance. Three witnesses at the house where the trouble began, Cap Coley, Eva Coley (his wife), and Lucile McBride, testified for the defendant. Essential testimony of Cap Coley was: 'The highway goes by my house. When [the defendant] first came up to my door, he knocked, and my wife, Eva, and Lucile and I were sitting at the fireplace, and he said, 'Do you know where any liquor is?' and I said, 'No,' and he said, 'Give me a drink of water. I am burning up.' And my wife, Eva, got the water and brought it in a dipper. He was standing at the door, and I was just inside the door, and I passed the water to him, and he was drinking his water with this hand [indicating] and holding the shutter with that hand. He turned up to drink the water, and at the time he turned up to drink Mr. Fennell [the deceased] walked up. I don't know which direction he came from. He got him by the shoulder and said, 'Hurry up and get it and let's go.' And when he said that, he turned the dipper up right quick and drank the water and passed the dipper to me. Mr. Fennell got a hold of him, and I pushed the door to * * * I could hear a rapping like it was hit on the corner of the post; couldn't tell whether it was hitting anybody or not. After the noise quit, they began to start like they were going toward town, and I heard [the defendant] say to Mr. Fennell, 'You knock the blood out of me.' That was after they had created some disturbance or noise like licks were being passed. I don't know who was passing the licks.' The witness said that when he got up the next morning, 'there was a little bit of blood' a couple of feet from the edge of the porch--'I don't know who it came off of,' and 'just a few drops leading on toward the way Mr. Fennell was found'; and there were signs on the post 'like something had been hit on it, but what hit it I don't know.' As to what had occurred before the attempted arrest, the witness said that he 'did not call any policeman or officer.' The defendant 'did not disturb me or interfere with me or my family in any shape or form. After he asked for the water he said, 'I am drunk as a son-of-a_____.' That is the only curse word I heard him say. He was drinking his water * * * I said I heard something like beating on a post. Mr. Fennell said, 'Hurry up and get it and let's go.' I didn't see no signs of scuffling out there. All I saw was the blood * * * I didn't notice for the scuffling * * *.' The defendant 'had his knife in his hand when I first seen it. I didn't tell you that a while ago when I said he had his hand on the door, because you were asking me so fast. * * * He had [the knife] open. * * * He hadn't got very far from the house, he had just started away from the house, when he said, 'You knock the blood out of me.' * * * He said 'You told me to go home, Mr. Fennell, and I was going home.' That is all I heard. * * * I went up there where Mr. Fennell's body was lying. * * * That was about 130 steps from my house. There was a spot of blood at my house about like your hat, and then I said I saw a few drops going up there--a drop or two.'

Eva Coley gave testimony similar to that of her husband, except that she did not mention any knife of the defendant, or any statement by him with reference to his being drunk. She said that when he came to her house, he 'asked for a drink of water, and I gave him some in a dipper. He was standing in my front door drinking the water, and Mr. Fennell walked up to him...