Yates v. State
| Decision Date | 01 March 1907 |
| Citation | 56 S.E. 1017,127 Ga. 813 |
| Parties | YATES v. STATE. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
Where upon a trial for murder the evidence disclosed that the accused killed the deceased while he, as a town marshal, was attempting to arrest him for a past violation of a municipal ordinance it was not erroneous to refuse to allow the defendant to prove by a witness that, on the day of the homicide, he was told by the marshal that the accused was to come to town that day to stand his trial for violating the town ordinance, and that this was understood between him and the accused.
A ground of a motion for a new trial, which assigns error upon the admission of merely designated documentary evidence without disclosing the contents of the writing admitted cannot be considered.
When upon the trial of a case of the character indicated in the first headnote, it appeared that, at the time of the homicide, the marshal, accompanied by a posse, attempted to arrest the accused without a warrant, evidence that the accused had violated an ordinance of the town wherein such attempt to arrest was made, "in the presence of the deceased on [a named date], about four months before the killing and that [the accused] was armed with a gun and resisted arrest," was not "irrelevant and immaterial."
Where the question under examination, and to be decided by the jury, is one of opinion, an expert witness may give his opinion thereon, based on facts which he himself knows and has observed.
As a general rule, a municipal peace officer in whose presence a town ordinance has been violated has no lawful authority without a warrant, to arrest the offender, when he has had ample time and opportunity since the commission of the offense to procure a warrant.
Error from Superior Court, Decatur County; W. N. Spence, Judge.
Jim Yates was convicted of voluntary manslaughter, and brings error. Reversed.
Crawford & Rickeston, R. R. Terrell, and R. G. Hartsfield, for plaintiff in error.
I.
J. Hofmayer, Sol. Gen. pro tem., and W. E. Worten, Sol. Gen., for the State.
Yates was tried under an indictment charging him with the murder of Freeman, and was convicted of voluntary manslaughter. It appeared from the evidence that Freeman was the town marshal of Donalsonville, and that the homicide occurred while he, with two other persons whom he asked to accompany him, was attempting, without a warrant, to arrest the accused for a violation of a town ordinance committed in his presence some months before. The accused made a motion for a new trial, which was refused, and he excepted.
1. Error was assigned in the motion because the court refused to permit the accused to prove by a named state's witness that the deceased, on the day of the homicide, told him "that Jim Yates was to come to town that day to stand his trial on the charge of violating the town ordinance, for which the deceased *** was seeking to arrest him, at the time said Freeman was killed, and deceased told witness that it was understood between the defendant, Jim Yates, and the deceased, that Yates was to come to town and stand his trial that day." As stated by counsel for plaintiff in error in their brief: "The evidence showed that about four months prior to the killing the defendant had violated an ordinance of the town of Donalsonville, and had been staying at his home in the country to avoid arrest." Suppose it was understood between Yates and the town marshal that Yates was to come to town on the day that the homicide occurred and stand his trial, this was no reason for his not submitting to arrest when he did come into the town for this purpose. It was rather a reason why he should do so. Nor was such an understanding any reason why the marshal should not attempt to arrest him when he came within the town limits. The marshal might well think that it was his duty to arrest, at the first opportunity, a man who, after a violation of a town ordinance, had been avoiding arrest for four months, even though such opportunity presented itself by reason of an understanding between them that the violator of the municipal ordinance would come to town upon a certain day for the purpose of being tried for the offense. There was no offer to prove that the marshal had promised not to arrest the accused, if he would come to town on this particular day for the purpose of standing his trial. The accused had never been arrested for his violation of the municipal ordinance, and was under no bond for his appearance to be tried for its violation. He had been avoiding arrest for four months. What assurance did the marshal have that the accused, if allowed to come and go as he pleased in the town, would in due time present himself before the municipal court for trial? His past conduct, already in evidence when the question here presented was made, in walking the streets, armed with a gun and defying arrest for the offense with which he was charged, and remaining away from his place of business in the town for several months, in order to avoid arrest, was not such as to justify the marshal in taking any chances in this respect, and the fact, which also then appeared in evidence, that when he came to town on the day of the homicide he came armed with a double-barrel shotgun, was not calculated to assure the marshal that the accused had simply come to town to stand his trial. The court was right in holding that this testimony was irrelevant. Besides, we do not see how the accused could have been hurt by the rejection of testimony the tendency of which was to show that at the time he slew the marshal he must have known that the latter was simply trying to arrest him for a municipal offense.
2. Error was assigned on the admission in evidence of "the criminal docket of the town of Donalsonville, and certain entries therein on pages 24 and 25, identified as made in the handwriting of the deceased." Error was also assigned upon the admission of "what purported to be a certified copy of sections 78 and 91 of the Code of Donalsonville." Neither of these assignments of error was well taken, because it did not appear in the motion what the docket entries were, nor what the Code sections contained; so the motion in each instance failed to disclose what the evidence was which was admitted over the objection of the accused.
3. Evidence "that Jim Yates [the accused] had violated a town ordinance of Donalsonville in the presence of the deceased on the 29th day of October, 1900, about four months before the killing, and that Jim Yates was armed with a gun and resisted arrest," was not "irrelevant and immaterial," and the court did not, as alleged, err in admitting it. It tended to sustain the theory of the state that the deceased, at the time he was killed, as the marshal of Donalsonville, was simply trying to arrest the accused for a previous violation of a town ordinance, and also to explain why he was accompanied by the other persons who participated in the attempt to arrest. It not only tended to illustrate the motive with which the deceased acted at the time he was killed, but also the motive of the accused when he killed him. The accused was on trial for the offense of murder, and malice is an essential ingredient in this crime, and any circumstance from which the jury could lawfully infer that the defendant entertained malice toward the marshal, and, actuated by this feeling, slew him, in a spirit of revenge, and not simply to prevent the marshal from unlawfully arresting him, was admissible. If the accused had previously violated a town ordinance, in the presence of the marshal, and the marshal had then attempted to arrest him for such offense, and the accused had resisted arrest with a deadly weapon, these facts tended, in some measure, to indicate the mental attitude of the accused in reference to being arrested by this same officer and for this same offense. They tended to indicate that his mind, relative to being arrested, by this particular officer and for this particular offense, was not prepared to discriminate between a lawful arrest and an unlawful one, and that his mental attitude as to this matter was that he would resist either with deadly violence. The jury were to determine whether the accused slew the marshal in a spirit of malice, in which event he would be guilty of murder, or whether he did so in a heat of passion caused by an unlawful attempt of the deceased to arrest him, in which case he would be guilty of voluntary manslaughter, or whether the homicide was committed in self-defense. We think the testimony objected to disclosed circumstances which were relevant to the issues arising in the case.
4. Error was assigned in the motion for a new trial because the court allowed a state's witness "to testify, as a physician and an expert," as to the sanity of the accused at the time of the homicide, from his own personal observation of him for a period of six years, during which he came into almost daily contact with him, and frequently engaged him in conversation. The objection made to this testimony was "that as an expert the witness should testify from hypothetical questions asked him by counsel, and not from his own knowledge and observation." This objection was without merit. Even a nonexpert witness may give his opinion as to the sanity of a person, based upon personal acquaintance and conversation with such person after giving the...
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