Napper v. State, 15451.
| Decision Date | 07 May 1946 |
| Docket Number | No. 15451.,15451. |
| Citation | 38 S.E.2d 269 |
| Parties | NAPPER. v. STATE. |
| Court | Georgia Supreme Court |
1. While under the law and the evidence the arrest of the accused was unlawful without a warrant, and the accused would have been justified in using the necessary force to resist such unlawful arrest, there was evidence showing that he, a young man, while apparently submitting to the arrest, knocked down the arresting officer, a man more than 70 years of age, and took his pistol from him, and while the officer was upon the ground and raising himself on his elbows shot and killed him. The force thus employed was in excess of that necessary to free himself from arrest, and whether or not the interval between the time when the accused freed himself from the illegal arrest and the killing was a sufficient cooling time to render the killing murder was a question exclusively for the jury, and its verdict of guilty of murder was supported by the evidence.
2. The exception to an excerpt from the charge of the court, which is admittedly a correct statement of the law, is without merit, where the grounds of complaint are, (1) that it misled the jury as to the facts, and (2) that the court failed to charge other applicable principles of law.
Error from Superior Court, Laurens County; R. Earl Camp, Judge.
Aaron Napper, alias Lovett Nappier, was convicted of murder, and he brings error.
Judgment affirmed.
Aaron Napper, alias Lovett Nappier, was tried and convicted and sentenced to be electrocuted under an indictment charging him with the offense of murder by shooting one J. J. Webb with a pistol. The exception here is to the judgment overruling his amended motion for new trial.
The evidence for the State shows that Robert Thomas a 13-year-old boy was an eyewitness, and he testified that he knew the deceased Webb, who was a policeman at Dudley, Georgia, and he saw the accused shoot the deceased at Dudley. He was nearby and saw the accused knock Webb down with his fist; and Webb raised back up on his arm, and the accused shot him three times and backed off and shot again and then went off by the post office. He did not see the deceased threaten or bother the accused. The deceased was carrying the accused to jail.
Carl Pope testified that he was the proprietor of a tent show performing on the night of September 12, 1945, in Dudley, which is in Laurens County, Georgia. Shortly before the show ended he saw the defendant push his face "as close as he could get" into the face of the witness's wife, who reared back and walked away from him. The defendant started to lie down, but being bothered by some ladders, sat down. When Webb, the policeman, came out of the show, he called Webb's attention to the negro and told Webb that he thought the negro was drinking. The deceased went over and flashed his light on the defendant, summoned the witness, and expressed the opinion that the defendant had been drinking, and the witness said to the policeman that something smelled kind of loud. The deceased led the defendant off of the show grounds, holding him by the wrist. After they had passed out of sight, the witness heard four shots, and saw the defendant running back of the tent, and thought that the defendant had gotten away from the policeman, who was an old man, and the witness held his flashlight on the defendant until he disappeared. The witness then went out to the front of the post office and saw Webb lying dead. He neither saw nor heard any threats or abuse of the defendant by the deceased. He identified a pistol as one that he had seen in the possession of the deceased.
Eloise Jones testified that she saw the arrest and heard the shots and saw the body of Webb after he had died and saw the defendant fleeing.
William Smith testified that he knew the defendant and had worked on a railroad with him. He knew Webb, the policeman at Dudley. He spoke to the defendant at the tent show, and when the defendant talked a little unconcerned, the witness walked up the street. He heard the shots and later saw the body of the policeman. There was one wound in the neck, and two in the stomach.
Harry Smith testified that he had known the defendant two months. The defendant worked on the railroad and had worked at Dudley for three weeks or so at one time. He saw the defendant on the night of the homicide, and was with William Smith when he spoke to the defendant. He heard the shots and saw someone in flight, but did not recognize him, and saw the body of Webb which bore three wounds.
Tommy Walker testified that he knew both the defendant and the accused. He brought the defendant in his car to Dudley. The defendant was not drinking, or at least the witness did not pay that much attention. The defendant left his car and went to the tent, staying so long that the witness drove on to a spot just above thepost office. He heard the shots and immediately thereafter saw the defendant walking rapidly by his car, carrying a gun.
Tom Jackson testified that he knew the deceased. As he left the show, he saw the deceased hit the defendant. He later heard the shots and saw the defendant running.
Robert Thomas testified that he saw the accused and the deceased in front of the post office. The deceased had his blackjack wrapped around his right hand. He did not see the deceased strike or hit the accused.
Carlos Gay testified that, earlier in the evening, the defendant had visited the jail at Dudley, saying that he wanted to get a boy out who was held there. The defendant was pretty abrupt and was told to leave the jail because he was not in shape to get anyone out. The witness started to lock the defendant up, but did not because he thought the defendant would leave. The witness saw the deceased after he was shot, and in his opinion the deceased was lying down when he was shot. In his opinion the deceased was shot only one time, that one shot going into the jugular vein. The deceased was about 70 or 75 years of age.
The accused made the following statement:
The only witnesses offered by the accused were James Walker and G. R. Barwick, both of Treutlin County, who testified to the good reputation of the accused.
Lester F. Watson, of Dublin, and Will Stallings, of Saperton, for plaintiff in error.
W. W. Larsen, Sol. Gen, of Dublin, Eugene Cook, Atty. Gen, and Margaret Hart-son, of Atlanta, for defendant in error.
DUCKWORTH, Justice (after stating the foregoing facts).
1. An arrest for a crime may...
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