Pickett v. State

• Decision Date: 16 March 1896
• Parties: PICKETT v. STATE.
• Court: Georgia Supreme Court

25 S.E. 608

99 Ga. 12

PICKETT v. STATE.

Supreme Court of Georgia

March 16, 1896

Syllabus by the Court.

1. An arresting officer has no authority, without a warrant, upon mere information that another is carrying a concealed pistol to arrest the latter and search his person for the purpose of ascertaining whether or not he is infact violating the law prohibiting carrying concealed weapons. Even if he was so doing, the offense was not, in legal contemplation, committed in the presence of the officer; and such an arrest and search are unauthorized by law, and are, within the meaning of the constitution, unreasonable.

2. Where the person thus sought to be arrested fired at the officer with a pistol, was indicted for assault with intent to murder, and upon the trial testimony was introduced to the effect that both parties fired, though it was an issue of fact as to who fired first, it was error to charge, "If you find it would not be a case of murder, had death ensued you will find [the accused] guilty of shooting at another," such charge being erroneous, in that it omitted altogether any question of justification on the part of the accused.

Error from superior court, Bartow county; T. W. Milner, Judge.

Dan Pickett was convicted of an assault with intent to commit murder, and brings error. Reversed.

J. B. Conyers and Montz & Conyers, for plaintiff in error.

A. W. Fite, Sol. Gen., and A. S. Johnson, for the State.

LUMPKIN J.

1. While, under section 4723 of the Code, an officer may without a warrant, make an arrest for an offense committed in his presence, he has no authority, upon bare suspicion, or upon mere information derived from others, to arrest a citizen and search his person in order to ascertain whether or not he is carrying a concealed weapon in violation of law. The constitution of this state expressly declares, in the bill of rights, that "the right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated." Code, § 5008. If any search is unreasonable, and obnoxious to our fundamental law, it is one of the kind with which we are now dealing. Even if the person arrested did in fact have a pistol concealed about his person, the fact not being discoverable without a search, the offense of thus carrying it was not, in legal contemplation, committed in the presence of the officer; and the latter violated a...