Perdue v. State

• Decision Date: 16 March 1909
• Docket Number: 1,667.
• Citation: 63 S.E. 922,5 Ga.App. 821
• Parties: PERDUE v. STATE.
• Court: Georgia Court of Appeals

63 S.E. 922

5 Ga.App. 821

PERDUE v. STATE.

No. 1,667.

Court of Appeals of Georgia

March 16, 1909

Syllabus by the Court.

A citizen whom it is attempted unlawfully to arrest has a right to resist force with force proportionate to that being used to arrest him; and if, in the exercise of such right of resistance, he kills an officer who is unlawfully attempting to arrest him, he is guilty of no offense.

[Ed Note.-For other cases, see Homicide, Cent. Dig. § 144; Dec Dig. § 111. ^[*] ]

Where a person was on trial for murder in killing an officer, and his defense is that he killed the officer while he was attempting in a felonious manner to arrest him without authority, it was material and prejudicial error for the court to charge the jury without qualification, as follows: "A party has no right to kill an officer even to prevent an illegal arrest. He has no right to kill him to prevent a legal or illegal arrest." Such instruction excluded the right to kill an officer to prevent an illegal arrest under any circumstances of felonious aggression on the part of the officer.

[Ed Note.-For other cases, see Homicide, Dec. Dig. § 300 ^[*]]

Where, in a trial for murder, the defense relied upon was lawful resistance to a felonious attempt to arrest without authority, the law of justifiable homicide in self-defense was not alone applicable. The court should have charged the jury also the law relating to the right of the defendant to resist an attempt to arrest him illegally.

[Ed. Note.-For other cases, see Homicide, Dec. Dig. § 300. ^[*]]

None of the other assignments of error are meritorious.

Error from Superior Court, Pike County; E. J. Reagan, Judge.

B. F. Perdue was convicted of voluntary manslaughter, and he brings error. Reversed.

Powell, J., dissenting.

A. A. Murphey, E. F. Dupree, R. L. Berner, W. Y. Allen, E. M. Owen, and John R. Cooper, for plaintiff in error.

J. W. Wise, Sol. Gen., Bloodworth & Bloodworth, J. F. Redding, and J. Y. Allen, for the State.

HILL C.J.

Ben Perdue was indicted for murder and convicted of voluntary manslaughter. The writ of error challenges the judgment overruling his motion for a new trial. The motion contains numerous grounds of alleged error, but we shall consider only those which are deemed material. To a clear understanding of the decision arrived at, it is necessary to make a brief statement of the evidence in behalf of the state and that in behalf of the defendant.

On the night of the killing, Ben Perdue, with several others, was on the streets of the town of Barnesville, and was arrested by Ben Porch, the deceased, who was one of the policemen of the town. He was arrested for being drunk on the streets. The policeman took him to the town prison and incarcerated him for 10 or 15 minutes, when he was released by the policeman from custody on a cash deposit of $10 as security for his appearance to answer the charge for which he was arrested. About 3 o'clock in the morning of the same night, while Ben Porch was still on duty as a policeman, his attention was attracted by some one standing in Market street. He had a lantern in his hand, and, raising it, asked who it was, and the defendant replied, "I am Ben Perdue, and I have got you"; and immediately shot him twice with a shotgun, loaded with number six or seven shot. One load entered the right thigh on the outside, and some of the shot from this load entered the inside of the left thigh. The second shot entered the back. This statement of what occurred between the defendant and the deceased at the time of the shooting is the account given by the deceased soon after the shooting, and subsequently repeated by him in what was alleged to have been a dying declaration. The state also proved that, after the defendant had been first arrested by the deceased, he left town, went to his home, secured a shotgun, and returned to town, with the declaration that he intended to kill the deceased. The state also proved that prior to this time there was "bad blood" between the deceased and the defendant, and that the defendant had on previous occasions threatened to kill the deceased. The deceased in his statement of what occurred between him and the defendant at the time of the shooting further said that the shooting by the defendant was entirely unprovoked, as he made no threats to arrest him or hostile demonstration of any character, but that immediately following his query, as to who it was, the defendant shot him; that, when he was shot the first time, he threw his hands around to draw his pistol from its scabbard, and the second shot was fired by the defendant before he had succeeded in drawing his pistol. This is a substantial statement of the material facts shown by the state, and, if true, makes a clear case of murder.

The defendant contended that at the time of the shooting the deceased was endeavoring to arrest him illegally, and, to accomplish his illegal arrest, was making a felonious assault upon his person with his pistol, and that he shot the deceased under the fears of a reasonable man that a serious personal injury was about to be inflicted on him in this felonious attempt to illegally arrest him. In proof of this defense he introduced evidence tending to show that the deceased entertained ill will towards him; that his arrest that night by the deceased was wholly without cause, as he was not drinking or under the influence of intoxicants; and that, when the shooting took place, he was quietly sitting in the foot of his buggy, preparing to go home, and was then waiting for a companion who was to go with him. "While sitting there, Mr. Porch came along. I saw him before he got to me. He was coming down Market street, coming, I suppose, from the depot. He came up the street. I was in hopes he would go by, and not see me. He did pass. He got ten steps or more by before he noticed me. The horse might have moved and attracted his attention. He turned and raised his lantern. He asked who it was. I told him Ben Perdue. I had raised up out of the foot of my buggy when he first spoke. He said: 'I thought you had gone home.' I said: 'I am going. I am fixing to go now.' He said: 'You are not doing any such thing.' I said: 'Yes; I am only waiting for Martin, and will leave in a few minutes.' Mr. Porch said: 'I am going to lock you up again.' I said: 'No; I am not doing anything to be locked up for.' Mr. Porch pulled off his glove, set his lantern down, and said: 'I will lock you up or kill you.' He reached his hand here [indicating], and pulled his pistol out this way, and stepped with one foot off of the sidewalk towards me, and I shot him as he reached his pistol and pulled it that way. I shot Porch in the leg to stop him. I could have shot him in the face or stomach, and have killed him when he passed, if I had wanted to have killed him. I did not want a difficulty with him. It was not my intention to kill him, though he started to pull his gun to kill me. I shot him so he could not get to me or shoot me." This statement of the occurrence, made by the defendant, is substantially corroborated by the testimony of another witness. The defendant explained by the testimony of four witnesses his innocent possession of the shotgun.

It is manifest from the verdict of the jury that they did not believe the evidence in behalf of the state; and it is apparent from the verdict that they did believe the defendant's statement and the evidence in his behalf. The verdict was as favorable to the defendant as the jury were authorized to find under the instructions by the court as to the law applicable to the defense relied upon. The court charged the jury, in substance, that if the defendant shot the deceased because of his arrest, and that arrest was legal, he would be guilty of murder, and that, if he shot the deceased because of such arrest and that arrest was illegal, he would be guilty of murder or voluntary manslaughter, according to whether or not a sufficient time had elapsed in the opinion of the jury, for passion to subside and reason to resume its sway; in other words, that although the defendant had been arrested without cause, and illegally, if sufficient cooling time had elapsed between the illegal arrest and the killing, and the defendant killed the deceased because of such illegal arrest, his offense would be murder, but that if, in the opinion of the jury, sufficient cooling time had not elapsed between the illegal arrest and the shooting, the defendant would be guilty of voluntary manslaughter. This part of the charge is objected to for various reasons by the defendant, but we think it clearly and aptly states the law applicable to the hypotheses.

It is contended by the defendant that the court in charging the jury the law applicable to the theory of the defense eliminated the right of the defendant to protect himself from an illegal arrest, although such arrest may have been attempted in a violent and felonious manner, and that the court presented to the jury only the law of justifiable homicide in self-defense as laid down in sections 70 and 71 of the Penal Code of 1895. Error is assigned on the following excerpt taken from the charge: "An arrest by an officer without a warrant where no offense has been committed in his presence would be illegal and unlawful, but I charge you that a party has no right to kill an officer even to prevent an illegal arrest. He has no right to kill to prevent either a legal or an illegal arrest." The errors alleged to exist in this instruction are elaborated with specific detail. The charge is alleged to be an incorrect statement of the law because as a matter of law a person has a right to resist his illegal arrest where it is attempted by force, and to use in resistance force commensurate with the...