Williams v. State

96 S.E. 385, 148 Ga. 310, 1918 Ga. LEXIS 324

• Court: Supreme Court of Georgia
• Decided: August 14, 1918
• Docket: No. 775
• Status: Published

Opinion

Hill, J.

Preston Williams was indicted and convicted of the murder of J. W. Johnson. Having been denied a new trial, he excepted. The evidence for the State showed that on May 8, 1917, the defendant was operating an illicit whisky distillery near his residence. The deceased was a deputy sheriff, and attempted to arrest the defendant Williams at his still, while he was in the act of operating it. When the deceased came upon the, defendant he ordered the defendant to “hands up,” and the defendant threw up his left hand and pulled a pistol from his pocket with the other hand and shot twice, and then the deceased commenced shooting. The deceased died from the wounds thus inflicted. It is insisted that under such circumstances the defendant had the right to defend himself against an unlawful arrest, as he did not know the deceased was an officer, or who he was. Held:

1. It being a felony in this State to distil or manufacture intoxicating liquor at the date of the homicide (Park’s Ann. Code Supp. 1917, § 448 (rrrr)), and the defendant being engaged in the commission of such felony 'at the time the officer-sought to arrest him, such officer, as an officer or a private person, had the right to make the arrest with or without a warrant. Penal Code, §§ 917, 921; and see 5 Corpus Juris, 392, § 16. Therefore no rule of law relative to the right of a person to resist an unlawful arrest is applicable to the present case. It follows that the criticisms upon the charges given to the jury, and the complaints of omissions to charge, based on the theory of an illegal arrest, are without merit.

2. None of the special grounds of the motion require a reversal. The evidence was sufficient to authorize a finding that the accused was violating the law of the State by commiting a felony in the presence of the deputy sheriff. The jury were authorized, under the evidence, to find the defendant guilty of murder, and the court did not err in denying him a new trial. Williford v. State, 121 Ga. 173, 176 (48 S. E. 962). See Johnson. v. State, 130 Ga. 27 (6), 30 (60 S. E. 160).

Judgment affirmed.

All the Justices concur.

Indictment for murder. Before Judge Thomas. Thomas superior court. December 15, 1917.

John B. Cooper, for plaintiff in error. Clifford Walker, attorney-general, Fondren Mitchell, solicitor-general, and M. C. Bennet, contra.