Opinion
34488.
DECIDED FEBRUARY 13, 1953.
Certiorari; from Fulton Superior Court — Judge Hendrix. December 12, 1952.
James H. Dodgen, for plaintiff in error.
Paul Webb, Solicitor-General, John I. Kelley, Solicitor, J. E. Thrift, Charlie O. Murphy, contra.
1. The petition for certiorari was not subject to dismissal because it was not affirmatively alleged therein that a bond had been made and that a certified copy, together with the certificate of the clerk approving and accepting same, had been attached thereto.
2. The alleged error based on the recharge of the court to the jury during the absence of the defendant and his counsel from the courthouse will not be considered, the judge, in his answer to the certiorari not approving this assignment of error.
3. The evidence demanded a finding that the defendant was not guilty of an assault and battery on the police officer in resisting an illegal arrest, and the judge of the superior court erred in overruling the defendant's petition for certiorari.
DECIDED FEBRUARY 13, 1953.
On April 9, 1952, W. S. Ronemous was tried before Honorable charles G. Bruce, Judge of the Criminal Court of Fulton County, and a Jury, on an accusation charging him with assault and battery, to which the accused pleaded not guilty. The jury found the defendant guilty, and he was sentenced to twelve months on the public works of the county. The defendant applied to the Superior Court of Fulton County for the writ of certiorari. In his certiorari he assigned error generally, and also on the ground that the court recharged the jury during the absence of the defendant and his counsel. The trial judge overruled the certiorari, and to this judgment the defendant excepted.
It appears from the evidence that two police officers went to the home of the defendant in the City of Atlanta, on a call reporting that he was beating his wife. When these officers arrived on the scene the defendant was partially undressed and had. apparently been drinking, but was not then beating his wife. The officers testified that the defendant's wife informed them that the defendant had been beating her, and she wished him arrested. She told them this in the presence of the defendant. The officers proceeded to arrest the defendant, without a warrant. Officer Tuggle testified: that he and his partner, officer Mueller, arrived at the defendant's home on December 31, 1951; that the found the defendant in a "drunken condition"; that his wife said he had been beating her and she wanted him locked up; that "my partner and I arrested him, carried him to the car by force, and when we put him in the car he continued to fight. . and he reached over and grabbed and tried to choke me"; that the defendant "reached over from the back seat of the car and grabbed me by the neck and he was still fighting all the time"; and that after they got him quieted down and were carrying him to the jail, the defendant "started on me again and reached over the back seat, grabbing me and choking me again." It appeared that this officer was driving the police car and the other officer was in the back with the defendant. On cross-examination officer Tuggle testified: "I found him in his home. He didn't have his shirt or his clothes on at the time. . He resisted being arrested while we were there. He resisted our taking him to jail but he didn't hurt me. I took him to the station-house and locked him up." The other officer testified substantially the same. He stated: "He (the defendant) didn't commit any crime." A witness for the defendant testified that she was on the scene, and that the defendant was doing nothing when the officers came. She said, "I saw them put him in the car," and "he did not make any resistance at all that I saw . . they pushed him in."
1. The solicitor urges that this petition for certiorari was properly overruled, in that it was subject to dismissal because it was not affirmatively alleged therein that the defendant had made a supersedeas bond, as required under Code § 19-214, which had been approved, accepted, and certified by the clerk, as provided in said statute, and the solicitor cites Skipper v. Mayor c. of Brunswick, 29, Ga. App. 185 (114 S.E. 725), and Nilsen v. City of LaGrange, 55 Ga. App. 676 ( 191 S.E. 175).
The defendant in his petition alleged that he had "complied with the law in such cases," and that he "attaches hereto a certified copy of the bond filed by him, duly certified by the Clerk of the Criminal Court of Fulton County"; and attached to the petition appears a certified copy of the bond and certificate of the clerk that the defendant had filed the bond required by law, and that said bond was approved and accepted by him. In these circumstances, there was a substantial compliance with the law in regard to the petition for certiorari. The provisions of Code § 19-214 were substantially complied with. See Cannon v. City of Americus, 11 Ga. App. 95 ( 74 S.E. 701). There is no merit in this contention of the State.
2. The judge in his answer does not approve the assignment of error setting out that the defendant and his counsel were absent from the courthouse when the jury were called back for a recharge, stating that he was under the impression that the were present, but he did not know for sure. Dickerson v. State, 68 Ga. App. 157 (4) ( 22 S.E.2d 207). This answer is not traversed nor excepted to by the defendant. Martin v. State, 43 Ga. App. 334 ( 158 S.E. 803). Furthermore, the defendant in his brief does not insist upon this ground of his certiorari. Dixon v. State, 52 Ga. App. 200 ( 182 S.E. 687). It follows that no error appears from this assignment of error.
3. "An arrest for a crime may be made by an officer, either under a warrant, or without a warrant if the offense is committed in his presence, or the offender is endeavoring to escape, or for other cause there is likely to be a failure of justice for want of an officer to issue a warrant." Code, § 27-207. The arrest of the defendant was made without a warrant. His wife called the officers and said he was beating her. When the officers arrived, the defendant was not beating her, but was sitting in his living room, in his shorts, in a drunken condition. The wife stated in his presence and to the officers that the defendant had been beating her and she wanted him arrested. The officers took him by force and placed him in the police car. Officer Tuggle testified that the defendant resisted arrest at the time he sought to arrest him and that he continued fighting in the car, attacking Tuggle twice. While it is true that one witness said the defendant was doing nothing when the officers came, and that he did not "make any resistance at all" that she saw, when they "pushed" him into the car, the officer making the arrest positively testified that the defendant continuously resisted the arrest from its inception. Vlass v. McCrary, 60 Ga. App. 744 ( 5 S.E.2d 63). The arrest was clearly illegal. Every person has the right to resists an illegal arrest, and may use such force as is necessary for the purpose. Holmes v. State, 5 Ga. App. 166 ( 62 S.E. 716). The defendant here used to weapon. He resisted arrest only by the use of his hands. The officers used force in effecting the arrest. The defendant resisted with force not exceeding that used by the officers. Therefore, the defendant was not guilty of an assault and battery on officer Tuggle, but was within his rights in seeking to prevent his being carried to the police station and jailed on an illegal arrest.
The fact that the defendant's wife had told the officers in the defendant's presence that he had beaten her and she wanted him locked up did not render the arrest legal.
It follows that the evidence did not authorize the verdict that this defendant was guilty of an assault and battery on the police officer, and the trial court erred in overruling the defendant's petition for certiorari.
Judgment reversed. Townsend and Carlisle, JJ., concur.