Luffman v. State

Hill, J. In Adams v. State, 121 Ga. 163 (3) (48 S. E. 910), it was held: “Where the circumstances are such that a lawful arrest can not be made except under warrant, the warrant must, at the time of making the arrest, be in the possession of the arresting officer, or of another in the neighborhood with whom he is acting in concert. Eor the purpose of making an arrest, a warrant is not in the possession of the officer when it is in his house some distance from the scene of the arrest.” The evidence in this case tended to show that a warrant was issued by a justice of the peace in Whitfield County, for the arrest of the deceased; that subsequently the justice of the peace, while at Resaca in Gordon County, seeing the deceased, informed the defendant, who was a bailiff in Gordon County, of the existence of the warrant, and requested him to arrest the deceased. At the time of the request the justice of the peace did not have the warrant, nor was it ever delivered to the defendant to be executed. Nevertheless the déíendant proceeded to arrest without the warrant. The latter resisted arrest on the ground that the arresting officer did not comply with his demand for exhibition of a warrant. In the controversy that ensued the officer shot and killed the deceased. Under application of the principle stated above, the attempted arrest was unlawful. There was no evidence to authorize a finding that the arrest was for an offense committed in the presence of the officer, or that the deceased was attempting to escape, or for other cause there was likely to be a failure of justice for want of an officer to issue a warrant. If an officer attempting to make an unlawful arrest proceeds so far that his act would amount to an assault, the person sought to be arrested may resist the assault with force proportionate with the attack made upon him; but if the resistance exceeds the [301] force necessary to prevent the illegal arrest, and amounts to a felonious assault upon the officer, the latter may resist such felonious assault to the extent of taking the life of the assailant, if that amount of resistance be necessary to prevent the attempted injury. Coleman v. State, 121 Ga. 594 (49 S. E. 716), and cit.; Shubert v. State, 127 Ga. 42 (55 S. E. 1045). The evidence and the prisoner’s statement, as set out in the tenth ground of the motion for new trial, was sufficient to authorize a finding that the defendant, who was originally the aggressor, slew the deceased to prevent an assault upon the accused that was not disproportionate to the assault committed by him on the deceased in attempting to make the illegal arrest. In making his statement to the jury, as provided for by statute, the prisoner -can not lay the foundation for introducing in his favor evidence that would otherwise be inadmissible. Thus, where there was nothing to show that at the time of the homicide, with the commission of which the defendant was charged, the decedent was the aggressor and was making an attack upon the accused, except the statement of the accused to that effect, evidence offered by him to prove that the decedent was a man of violent character was properly rejected. Chapman v. State, 155 Ga. 393 (117 S. E. 321); Medlin v. State, 149 Ga. 23 (98 S. E. 551). The evidence authorized the verdict, and the court did not err in refusing a new trial. Judgment affirmed. All the Justices concur, except