Shafer v. State
| Decision Date | 15 April 1942 |
| Docket Number | 14025. |
| Citation | 20 S.E.2d 34,193 Ga. 748 |
| Parties | SHAFER v. STATE. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
1. Under conditions stated in the act approved February 3, 1938 Ga.L.1937-1938, p. 103, a person may lawfully possess in any county in this State intoxicating liquors in quantity not exceeding one quart. Accordingly mere smell of whisky in a private room of a dwelling, and the presence of empty whisky containers and two glasses, in one of which is a fourth of a teaspoon of corn whisky, is insufficient to show violation of the law by the occupant, so as to authorize his arrest without a warrant for illegal possession of whisky.
2. If one of several officers having a common design to search a house and make arrest of the occupant for illegal possession of whisky is sent in disguise to the house intended to be searched while the other officers, one of whom retains the search warrant, are a mile from the place or so far distant that it cannot be exhibited to the person whose house is sought to be searched, and in such circumstances proceeds to search the premises without showing or informing the owner of the existence of the search warrant, he will be a trespasser and the attempted search and arrest by him are illegal.
3. In the circumstances of the instant case, on the charge of murder for slaying the officer, and in view of the rulings announced in the two preceding notes, the instruction to the jury as set forth in division 3 of the opinion was unauthorized by the evidence, tended to confuse and mislead the jury to the injury of the defendant, and the error requires a reversal.
4. Under the decision of this court in Johnson v State, 173 Ga. 734, 161 S.E. 590, it was not erroneous, as complained of, to charge as set forth in division 4 of the opinion.
5. The judge instructed the jury: 'If the motive of one shooting and killing another is solely to prevent an illegal arrest, he would be guilty of manslaughter; but if such a one shoots and kills another at a time when there is no actual or apparent necessity to do so, either to save his own life or prevent a felonious assault from being committed upon him, he would be guilty of murder.' Held, that the last part of this charge, when considered in connection with the first part, is erroneous. In the stated circumstances the slayer would not be guilty of any higher grade of homicide than voluntary manslaughter.
6. Introduction of evidence by the State as to the officer's entry into the dining-room and bath-room, tending to account for the presence of the officer and the manner of his intrusion into the private bath-room in which he was slain and declaration of the defendant made to the superior officer immediately after the homicide, to the effect that he did not shoot until after the deceased officer had shot at him, sufficiently showed alleviation that would prevent presumption of malice arising from the fact of intentional killing.
7. The first and second special grounds of the motion for a new trial, complaining of admission in evidence of certain photographs of the body after death of the person who was slain, do not show error.
8. Complaint of the excerpt from the charge to the jury as set forth in ground 11 of the motion for a new trial shows no merit.
9. 'Whether the failure to give stated instructions in charge to the jury was erroneous depends upon whether, under the entire evidence, such a charge was demanded; and this court will not undertake to review the evidence.' Goldberg v. State, 150 Ga. 59(4), 103 S.E. 90. In so far as grounds 3, 6, 13, 14, and 15 of the motion for new trial, relating to failure to charge, are sufficient to raise any question for decision, when considered in the light of the charge as a whole, they are not meritorious.
10. Grounds 4, 7, 8, and 10 of the motion for a new trial were expressly abandoned in the brief of the attorney for the plaintiff in error.
11. As the evidence may not be the same on another trial, no ruling will be made on the assignments of error based on the general grounds of the motion for a new trial.
On January 19, 1940, Ben Shafer was indicted for murder of W. A. (Aubrey) Frasier, alleged to have been committed on December 23, 1939, by shooting with a shotgun. On the trial a verdict of guilty was returned, the jury recommending the defendant to the mercy of the court. His motion for new trial was overruled, and that judgment was reversed because the judge erred, on the basis of the law as applied to the evidence, in failing to give in charge to the jury the law of voluntary manslaughter as relates to mutual combat.
Shafer v. State, 191 Ga. 722(3, 4), 13 S.E.2d 798. A second trial resulted in a verdict similar to the first. A motion for new trial was overruled, and the defendant excepted. The evidence adduced at the second trial showed the case in substance as pointed out in the following narrative which has been gleaned from the brief of evidence including certain photographs. For several years before and at the alleged date of the homicide Shafter with his wife had resided in and operated a store in one house located about seven miles from the City of Atlanta, on the side of the Campbellton Road near the town of Ben Hill, all in Fulton County. The house was so arranged that in entering the store at the front and looking to the back you see a door to your right that opens into a bed-room and another door to your left that opens into the combination kitchen and dining-room. In the kitchen another door opens to the left into a good size bath-room, and in the far corner to the right of the bath-room another door opens to a platform from which steps descend to a basement almost commensurate with the house. A person standing in the store and looking through the kitchen door can see the bathroom door, and to some extent into the bath-room when both doors are open. About nine o'clock on the morning of the homicide Lieutenant W. A. Wells of the Fulton County police, at the court-house in Atlanta, in conversation with county policeman W. Marion Riley and W. A. (Aubrey) Frasier, directed Riley to take Frasier by his home to change his clothes (from uniform to citizens clothes), and to obtain a search warrant for the store and residence of Shafer, and meet him at Cascade and Fairburn roads. The object was to search the Shafer place for whisky. In compliance with these directions Frasier changed his clothes, and in his presence Marion Riley procured a search warrant, after which they met Wells at the place he had designated. With Wells were two other county policemen, B. B. Adams and Cicero Adams. The party of five in three automobiles then went over to a point on County-Line road about 100 yards off Campbellton road and about one mile from Shafer's place. Wells then directed Frasier (who had been on the police force about two years, and had not been on previous raids of the place) to go down to Shafer's 'and go in the store and get him something to drink, * * * a bottle of beer if you can; * * * if he has not got that, get you a coca-cola, just to kill a little time, and we will come on down there and see what happened when we rolled up.' This direction was given, as explained by Lieutenant Wells, because previously in 1934 and 1936, when the officers were raiding the place, Mrs. Shafer 'always made a break for the bath-room.' Frasier left alone 'at ten-twenty o'clock,' in a car, saying 'Give him three or four minutes.' He did not carry the search warrant. It was retained in Riley's possession. At three minutes after ten-twenty o'clock the other four members of the party followed in the other two cars, and on reaching Shafer's place found the Frasier car parked in front of the store, unoccupied. Frasier had gone into the store and had been killed by Shafer by shooting with a ten-gauge shotgun, the shot taking effect on the left side of the head above the brow, and blowing out practically all the brains.
This far the evidence was wholly direct and uncontradicted. On being questioned by Wells, Shafer stated that Frasier came in the store and ordered a coca-cola and some aspirin and water and when Mrs. Shafer started to the bath-room for the water, Frasier followed her, and as she opened the bath-room door Frasier walked in. Mrs. Shafer called 'Ben, Ben.' Shafer approached and engaged in a 'scuffle' with Frasier. In the encounter Frasier shot at him, and he reached for the shotgun that was behind the door. At the time of the arrival of the other officers the body of Frasier, as shown by the photographs (exhibits 18 and 19) was lying on its left side in the bath-room with feet toward and near the kitchen door, with head in direction of the bath-room door opening to the basement. The right arm rested on the right side of the body, with open hand turned to the front, showing the back or outside of the fingers in a bruised or bloody condition. The body still wore the overcoat, in the right-hand pocket of which was Fraiser's policeman's blackjack. There was testimony that Frasier's 'officer's pistol' was lying on the floor twelve or eighteen inches behind the hip. It contained five loaded shells and one empty, and showed no bloodstain or mark of pellets or shots. The ceiling and walls and floor of the bathroom were spattered with the brains and blood. There was no blood in the kitchen. In the kitchen wall opposite the bath-room was an 'inset-cabinet' containing glasses and dishes. A bullet admittedly fired from Frasier's pistol had penetrated this, breaking some of the ware and hitting the wall. Shafter's gun was lying on the bed in the bed-room. When the other officers arrived they met Shafter in the store about half way from the bed-room door, bleeding from a cut on the forehead. He made a statement as to...
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