McDuffie v. State

Lamar, J.

(After stating the foregoing facts.) 1. The Penal Code (§§ 885, 332) recognizes marshals as peace officers. Under the principle embodied in the Political Code, § 223, and the Civil Code, § 5168, it was held in Robinson v. State, 82 Ga. 535 , and in Garrett v. State, 89 Ga. 446 , that a de facto marshal stands upon the same footing, as to the right to make an arrest, as one regularly appointed. In the present case, while his commission was not produced, it appeared from all the evidence that Blue was marshal — was accustomed to make arrests, and that such fact was well known to McDuffie.

2. The defendant strenuously insists, that, as there was no proof of the existence or terms of any ordinance prohibiting disorderly conduct, the court should have charged that there was no evidence that Blue had a right to make the arrest. There was evidence of disorderly conduct. Without proof of an ordinance, it was said in Burns v. State, 80 Ga. 546 , that a policeman had a right to arrest one in Savannah who was disorderly, and was justified in using such force as was. necessary to compel submission. But, irrespective of the question of disorderly conduct, there was no error in refusing to instruct the jury as requested. There was at least some evidence that McDuffie was carrying a concealed weapon. Watts, one of the witnesses for the defendant, testified, that “Blue told McDuffie there had been some shooting, and lie believed McDuffie had done it, and he would have to arrest him. He took out his pistol and showed him five cankered cartridges in it.” The defendant in his statement also claimed to have “pulled out his pistol and showed it to Blue. ” ■ There was evidence from other bystanders that they had not seen a pistol. While the issue was not distinctly presented, there was enough evidence of carrying a concealed weapon to warrant a refusal to charge that there was no proof to show that Blue had the right to arrest.

3. If the arrest had been lawful, and conducted in a lawful manner, the resistance culminating in homicide would have amounted to murder.

4. Had the jury found McDuffie guilty of murder, any error of omission or commission on the subject of the law of arrest *584 would, have been more important than it can possibly be under the present record. Here he was found guilty of manslaughter. This necessarily implies that the jury found either that the arrest was originally unlawful, or that it was being made in an unlawful manner so as to put Blue beyond the cover and protection which the law affords a peace officer when properly in the discharge of his duty. An examination of the entire charge, however, shows that the judge fully and fairly presented all the issues raised by the evidence. He instructed the jury as to the rights of an officer making a lawful arrest and the- extent of a citizen’s right to resist an unlawful arrest, and also fully and fairly instructed them as to the right of McDuffie to resist force with force in case he was being unlawfully arrested, or lawfully arrested and unlawfully beaten.

5. There was evidence of bad blood between the two men, but that did not in any way affect the rights of either. A marshal may lawfully arrest his worst enemy, or may unlawfully arrest his best friend. The motive would not determine the legality of the act. 'Whether it was originally a lawful arrest properly conducted, or lawful with improper force justifying resistance by commensurate force, or assault and battery, would be determined without regard to the motive with which the arrest was begun or attempted to be made effectual. There was no error, therefore, in refusing to charge as requested ©n the subject of the motive with which Blue made the arrest. If the arrest was lawful, it did not become the less so because of any ill will towards McDuffie.

7. It was competent to show that a witness for the State entertained feelings of ill will towards the defendant. Civil- Code, § 5289'. But that did not warrant an investigation of the particulars of the-difficulty, or the cause of the hostility. To admit such testimony would multiply issues and tend to confuse the jury. Andrews v. State, 118 Ga. 4 ; Bishop v. State, 9 Ga. 121 (1). Had the witness replied that he had no ill will, it would have been proper, on further cross-examination, to ask if he and the defendant .had not had a fight. Had he denied that, the accused would have been entitled to prove the contrary. Daniel v. State, 103 Ga. 206 . But this would not justify an investigation of a mere collateral issue or of the particulars of the difficulty.

Before the evidence for the State was concluded, the defendant *585 was allowed to introduce a witness out of the regular order. The court refused to allow him to testify as to a voluntary surrender by the defendant. There are cases which hold that such evidence is inadmissible, because in the nature of self-serving declarations. People v. Cleveland, 107 Mich. 367 , 65 N. W. 216 . That question is not presented, the assignment being that the evidence was in rebuttal and explanation of the flight already proved by the State. The only evidence on the subject of flight which we find is that subsequently offered by the defendant himself, and at the time there was nothing to warrant its admission in rebuttal or for the purpose for which it was offered.

The other grounds of the motion for a new trial are sufficiently dealt with in the headnotes. We find no error requiring the grant of a new trial.

Judgment affirmed.

All the Justices concur.