Shafer v. State , 193 Ga. 748 ( 1942 )

1. Under conditions stated in the act approved February 3, 1938 (Ga. L. 1937-1938, p. 103), a person may lawfully possess in any county in this State intoxicating liquors in quantity not exceeding one quart. Accordingly, mere smell of whisky in a private room of a dwelling, and the presence of empty whisky containers and two glasses, in one of which is a fourth of a teaspoon of corn whisky, is insufficient to show violation of the law by the occupant, so as to authorize his arrest without a warrant for illegal possession of whisky.

2. If one of several officers having a common design to search a house and make arrest of the occupant for illegal possession of whisky is sent in disguise to the house intended to be searched while the other officers, one of whom retains the search warrant, are a mile from the place or so far distant that it can not be exhibited to the person whose house is sought to be searched, and in such circumstances proceeds to search the premises without showing or informing the owner of the existence of the search warrant, he will be a trespasser, and the attempted search and arrest by him are illegal.

3. In the circumstances of the instant case, on the charge of murder for slaying the officer, and in view of the rulings announced in the two preceding notes, the instruction to the jury as set forth in division 3 of the opinion was unauthorized by the evidence, tended to confuse and mislead the jury to the injury of the defendant, and the error requires a reversal.

4. Under the decision of this court in Johnson v. State, 173 Ga. 734, it was not erroneous, as complained of, to charge as set forth in division 4 of the opinion.

5. The judge instructed the jury: "If the motive of one shooting and killing another is solely to prevent an illegal arrest, he would be guilty of manslaughter; but if such a one shoots and kills another at a time when there is no actual or apparent necessity to do so, either to save his own life or prevent a felonious assault from being committed upon him, he would be guilty of murder." Held, that the last part of this charge, when considered in connection with the first part, is erroneous. In the stated circumstances the slayer would not be guilty of any higher grade of homicide than voluntary manslaughter.

6. Introduction of evidence by the State as to the officer's entry into the dining-room and bathroom, tending to account for the presence of the officer and the manner of his intrusion into the private bathroom in which he was slain, and declaration of the defendant made to the superior officer immediately after the homicide, to the effect that he did not shoot until after the deceased officer had shot at him, sufficiently showed alleviation that would prevent presumption of malice arising from the fact of intentional killing.

7. The first and second special grounds of the motion for a new trial, complaining of admission in evidence of certain photographs of the body after death of the person who was slain, do not show error.

8. Complaint of the excerpt from the charge to the jury as set forth in ground 11 of the motion for a new trial shows no merit.

9. "Whether the failure to give stated instructions in charge to the jury was erroneous depends upon whether, under the entire evidence, such a charge was demanded; and this court will not undertake to review the evidence." Goldberg v. State, 150 Ga. 59 (4) (103 S.E. 90). In so far as grounds 3, 6, 13, 14, and 15 of the motion for new trial, relating to failure to charge, are sufficient to raise any question for decision, when considered in the light of the charge as a whole, they are not meritorious.

10. Grounds 4, 7, 8, and 10 of the motion for a new trial were expressly abandoned in the brief of the attorney for the plaintiff in error.

11. As the evidence may not be the same on another trial, no ruling will be made on the assignments of error based on the general grounds of the motion for a new trial.

No. 14025. APRIL 15, 1942. On January 19, 1940, Ben Shafer was indicted for murder of W. A. (Aubrey) Frasier, alleged to have been committed on December 23, 1939, by shooting with a shotgun. On the trial a verdict of guilty was returned, the jury recommending the defendant to the mercy of the court. His motion for new trial was overruled, and that judgment was reversed because the judge erred, on the basis of the law as applied to the evidence, in failing to give in charge to the jury the law of voluntary manslaughter as relates to mutual combat. Shafer v. State, 191 Ga. 722 (3, 4) (13 S.E.2d 798). A second trial resulted in a verdict similar to the first. A motion for new trial was overruled, and the defendant excepted. The evidence adduced at the second trial showed the case in substance as pointed out in the following narrative which has been gleaned from the brief of evidence including certain photographs. For several years before and at the alleged date of the homicide Shafer with his wife had resided in and operated a store in one house located about seven miles from the City of Atlanta, on the side of the Campbellton road near the town of Ben Hill, all in Fulton County. The house was so arranged that in entering the store at the front and looking to the back you see a door to your right that opens into a bedroom and another door to your left that opens into the combination kitchen and dining-room. In the kitchen another door opens to the left into a good size bathroom, and in the far corner to the right of the bathroom another door opens to a platform from which steps descend to a basement almost commensurate with the house. A person standing in the store and looking through the kitchen door can see the bathroom door, and to some extent into the bathroom when both doors are open. About nine o'clock on the morning of the homicide Lieutenant W. A. Wells of the Fulton County police, at the courthouse in Atlanta, in conversation with county policemen W. Marion Riley and W. A. (Aubrey) Frasier, directed Riley to take Frasier by his home to change his clothes (from uniform to citizens clothes), and to obtain a search warrant for the store and residence of Shafer, and meet him at Cascade and Fairburn roads. The object was to search the Shafer place for whisky. In compliance with these directions Frasier changed his clothes, and in his presence Marion Riley procured a search warrant, after which they met Wells at the place he had designated. With Wells were two other county policemen, B. B. Adams and Cicero Adams. The party of five in three automobiles then went over to a point on County-Line road about 100 yards off Campbellton road and about one mile from Shafer's place. Wells then directed Frasier (who had been on the police force about two years, and had not been on previous raids of the place) to go down to Shafer's "and go in the store and get him something to drink, . . a bottle of beer if you can; . . if he has not got that, get you a coca-cola, just to kill a little time, and we will come on down there and see what happened when we rolled up." This direction was given, as explained by Lieutenant Wells, because previously in 1934 and 1936, when the officers were raiding the place, Mrs. Shafer "always made a break for the bathroom." Frasier left alone "at ten-twenty o'clock," in a car, saying, "Give him three or four minutes." He did not carry the search warrant. It was retained in Riley's possession. At three minutes after ten-twenty o'clock the other four members of the party followed in the other two cars, and on reaching Shafer's place found the Frasier car parked in front of the store, unoccupied. Frasier had gone into the store and had been killed by Shafer by shooting with a ten-gauge shotgun, the shot taking effect on the left side of the head above the brow, and blowing out practically all the brains.

This far the evidence was wholly direct and uncontradicted. On being questioned by Wells, Shafer stated that Frasier came in the store and ordered a coca-cola and some aspirin and water; and when Mrs. Shafer started to the bathroom for the water, Frasier followed her, and as she opened the bathroom door Frasier walked in. Mrs. Shafer called "Ben, Ben." Shafer approached and engaged in a "scuffle" with Frasier. In the rencounter Frasier shot at him, and he reached for the shotgun that was behind the door. At the time of arrival of the other officers the body of Frasier, as shown by the photographs (exhibits 18, 19) was lying on its left side in the bathroom with feet toward and near the kitchen door, with head in direction of the bathroom door opening to the basement. The right arm rested on the right side of the body, with open hand turned to the front, showing the back or outside of the fingers in a bruised or bloody condition. The body still wore the overcoat, in the right-hand pocket of which was Frasier's policeman's blackjack. There was testimony that Frasier's "officer's pistol" was lying on the floor twelve or eighteen inches behind the hip. It contained five loaded shells and one empty, and showed no bloodstain or mark of pellets or shots. The ceiling and walls and floor of the bathroom were spattered with the brains and blood. There was no blood in the kitchen. In the kitchen wall opposite the bathroom was an "inset-cabinet" containing glasses and dishes. A bullet admittedly fired from Frasier's pistol had penetrated this, breaking some of the ware and hitting the wall. Shafer's gun was lying on the bed in the bedroom. When the other officers arrived they met Shafer in the store about half way from the bedroom door, bleeding from a cut on the forehead. He made a statement as to the circumstances of the homicide committed by him, which in substance included a declaration that Frasier was unknown to him and that he did not know that he was an officer. These officers had not heard any pistol or gunshot. No witnesses testified to seeing the shooting.

Joe Latham, introduced by the State, testified that he was in the store when Frasier arrived. After stating conversations by Frasier with Shafer as to order of beer and service of coca-cola, aspirin, and water, he testified that Mrs. Shafer after serving the first glass of water went to the bathroom, and Frasier followed five or six feet behind. Mrs. Shafer entered the bathroom, and had the door almost closed when Frasier put his foot in. Mrs. Shafer called "Ben, Ben." In response Shafer went back and seized Frasier from behind and pulled him around so that they were face to face. Frasier then "said he was a policeman. . . Shafer did not turn him loose. He kept fighting. . . They were scuffling. . . He kept on fighting him, and I . . left the place. . . When I last saw Shafer . . and Mr. Frasier, they were about as close to the bathroom door as I am to this panel here, in the kitchen. I did not see this double-barrel shotgun anywhere there. . . I did not hear any noise after I left the place, a gunshot or anything. I left in my automobile immediately after I got outside. I left before the other police arrived. . . You ask if I saw Mr. Frasier with anything in his hand . . after Shafer had jerked him around by the coat — well, he was hitting, but I could not . . swear that it was a blackjack or what it was. . . Both of them were fighting at each other. . . You ask whether I saw Mr. Frasier with a billy in his hand. . . I could not swear that it was a blackjack. . . He was going over pretty fast; you could not hardly tell what was in his hand. You ask did I see him go in his pocket — he come out with it, with something, and went over with it just like that fast, just as hard as he could hit. . . Mr. Shafer . . Stumbled back against the table." Other persons in the store left, as did Latham, during progress of the fight. But one of them, J. W. Driggers, appeared as a witness. He was introduced by defendant. His testimony as to arrival of Frasier and intervening occurrences in the store down to the beginning of combat was substantially as that of Latham, stated above. At this point the witness testified that when Shafer caught Frasier and turned him around, Frasier hit Shafer in the head with a "blackjack" held in "his right hand." "I did not see anything on his person or about his clothes that would lead me to believe that he was a policeman. . . I was the last one to leave Ben Shafer's place of business. Mr. Joe Latham was the first one of them to come out of the store to leave there. . . I did not hear Mr. Frasier say, ``I am a policeman.' At the time he was hitting him with this blackjack is when we all left the place of business. . . Mr. Joe Latham was the first one of them to come out of the store."

Other evidence was substantially as follows: When the officers first went in the building there was a strong smell of whisky in the bathroom and ten or fifteen empty tin whisky containers in the basement; also two empty whisky glasses on a little table in the kitchen, in one of which was about a fourth of a teaspoonful of corn whisky; also a bottle in the basin, with neck down, that had stopper off and did not show a "Government stamp," but did show a "State stamp," which carried fumes of corn whisky. In 1936, when the policemen were making a raid on Shafer's place, Shafer made a threat "to shoot some of these smart policemen . . down here trying to run over my wife." The county physician treated the wound on Shafer's forehead, and discovered the effects of blows on the left side of the head when he examined Shafer on being carried to prison. At the time of the homicide Frasier wore a sweater on the breast of which was attached his policeman's badge. Over the sweater were a pair of overalls, a dress coat, and an overcoat. No one testified that the badge was seen by any one present until after the homicide. Latham and Driggers, both present when Frasier came in the store, testified that they did not see anything about Frasier to show that he was a policeman. When Frasier changed clothes before starting on the trip the policeman's badge was pinned to his shirt. Human footprints stained with blood were found descending the steps leading from the bathroom to the basement. When the officers went in the bathroom Mrs. Shafer for the first time was seen coming in the bathroom door from the steps. Other witnesses testified, and certain photographs were introduced. The defendant made a statement before the jury; but the foregoing narrative is sufficient to enable the court to determine the questions presented in the motion for new trial, without going into further detail. 1. Under the act approved February 3, 1938 (Ga. L. 1937-1938, p. 103, sec. 11 (c) (Code, 1941 Supp. § 58-1056), "the possession of any distilled spirits or alcohol by any person which does not bear the tax stamps provided for herein shall be unlawful, . . and the offender shall be guilty of a misdemeanor." It is lawful, however, under section 23 (b) of that act (Code Supp. § 58-1073), "for any person to have and possess for use, and not for sale, in any county of the State, one quart of the liquors and beverages described in this act, which may have been purchased by the person for use and consumption from a lawful and authorized retailer and properly stamped." All presumptions being in favor of innocence, possession of whisky in quantity within the one-quart limit above described by the statute is prima facie presumed to be lawful. The mere smell of whisky will not authorize an inference of illegal possession. Graham v. State, 150 Ga. 411 (104 S.E. 248). Accordingly mere smell of whisky in a private room of a dwelling, and the presence of empty whisky containers and two glasses, in one of which was a fourth of a teaspoon of corn whisky, is insufficient to show violation of the law by the occupant, so as to authorize his arrest without a warrant for illegal possession of whisky. An arrest of the occupant without a warrant under such circumstances would be illegal. The fact that an empty bottle not bearing a "government stamp," but showing a "State stamp," containing "the fumes" of corn whisky, does not require a different ruling.

2. "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated; and no warrant shall issue except upon probable cause, supported by oath, or affirmation, particularly describing the place, or places, to be searched, and the persons or things to be seized." Code, § 2-116. "The officer executing a search warrant may break the door of the house or room specified in the warrant. The warrant is his justification. If it was taken without probable cause, the breaking and search is a trespass on the part of the applicant therefor." § 27-301. An officer undertaking to execute a search warrant should have the warrant in his possession or so immediately at hand that it may be exhibited as authority for making the search. His authority is analogous to the authority of the officer involved in Adams v. State, 121 Ga. 163 (3) (48 S.E. 910), where 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. For 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." See Luffman v. State,166 Ga. 296, 300 (142 S.E. 371); Giddens v. State,154 Ga. 54 (113 S.E. 386); Douglass v. State, 152 Ga. 379 (110 S.E. 168). If one of several officers having a common design is sent in disguise to a described house intended to be searched, while other officers, one of whom retains the search warrant, are a mile from the place, or so far distant that it can not be exhibited by such officer to the person whose house is to be searched, and in such circumstances he proceeds to search the premises without informing the owner of the existence of the search warrant, he will be a trespasser, and the attempted search will be illegal. It would not alter the case if after intrusion the intruder should declare that he was "an officer" but did not declare that he had a search warrant, the fact being that he did not have one that he could exhibit.

3. Under the rulings just announced, it was erroneous for the judge to charge the jury: "Where it is contended that an officer is slain while, in the course of his duties, he is seeking to prevent the commission of a crime or to make an arrest for the commission of a crime, it is a question for the jury to determine, from the evidence and the defendant's statement, whether there was an arrest, or an attempt to do so, whether a crime was being committed or had been committed in the presence of the officer, and whether or not such arrest or attempted arrest, if made or attempted, was legal or illegal, where the officer had no valid and legal warrant. An arrest may be made for a crime by an officer, either under a warrant or without a warrant, if the offense is committed in his presence. An offense is committed in the presence of an officer when either of the senses of the officer, such as seeing, hearing, or smelling, give him knowledge that the offense is being committed. The possession of whisky is a misdemeanor; that is, under certain circumstances and conditions the illegal possession of whisky is a misdemeanor." The charge was not authorized by the evidence, and tended to confuse and mislead the jury to the injury of the defendant, and requires a reversal.

4. It was ruled in Johnson v. State, 173 Ga. 734 (161 S.E. 590): "A request for instruction upon reasonable fears set up by the defendant as a justification for the homicide, which omitted the principle that the killing must not be committed in a spirit of revenge, was inaccurate; and the trial judge did not err in refusing to give such instruction to the jury." Under the foregoing ruling it was not erroneous to charge the jury as follows: "The mere fact of an unlawful arrest, where such is made or attempted, of which the jury would be the judges, would not alone justify the killing of an officer, unless it should appear that during the progress of the transaction the officer should commit, or attempt to commit, or be about to commit a felony upon the person so killing, or unless such officer should so act or make such a show of violence as to be sufficient to excite the fears of a reasonable man that a felony was about to be committed upon him by the officer, and such person should act under the influence of those fears, and not in a spirit of revenge." Wall v. State, 153 Ga. 309 (112 S.E. 142); Pyle v. State, 187 Ga. 156 (4) (200 S.E. 667).

5. In Golden v. State, 25 Ga. 527 (4), it was held: "One may kill another against whom he entertains malice, and yet not be guilty of murder." It was said in the opinion: "One may harbor the most intense hatred toward another; he may court an opportunity to take his life; may rejoice while he is imbruing his hands in his heart's blood; and yet if, to save his own life, the facts showed that he was fully justified in slaying his adversary, his malice shall not be taken into the account." In the motion for a new trial complaint is made of the charge: "If the motive of one shooting and killing another is solely to prevent an illegal arrest, he would be guilty of manslaughter; but if such a one shoots and kills another at a time when there is no actual or apparent necessity to do so, either to save his own life or prevent a felonious assault from being committed upon him, he would be guilty of murder." The last part of this charge, when considered in connection with the first part, is erroneous. In the circumstances as stated in the charge, the slayer would be guilty of no greater crime than voluntary manslaughter. The instruction complained of is a quotation from the decision inHowell v. State, 162 Ga. 14 (134 S.E. 59), but that decision overlooked the decision in the older case of Golden v.State, supra, and was not concurred in by all the Justices, and consequently it is not binding as a precedent.

6. In O'Pry v. State, 142 Ga. 600 (83 S.E. 228), it was held: "There being evidence authorizing the jury to find that the defendant had intentionally shot and killed the decedent, the court did not err in charging the jury as follows: ``The law presumes every homicide to be malicious until the contrary appears from circumstances of alleviation, excuse, or justification; and it is incumbent upon the prisoner to make out such circumstances to the satisfaction of the jury, unless they appear from the evidence produced against him.' Mann v.State, 124 Ga. 760 (53 S.E. 324, 4 L.R.A. (N.S.) 934.)"

(a) There can be no murder without malice express or implied. Code, §§ 26-1002, 26-1003, 26-1004. But one may kill another against whom he entertains malice, and yet not be guilty of murder. Golden v. State, supra.

(b) Introduction by the State of the evidence as to the officer's entry in the dining-room and the bathroom tended to account for the presence of the officer and the manner of his intrusion into the private bathroom in which he was slain. That evidence and the declaration of the defendant made to the superior officer immediately after the homicide, to the effect that he did not shoot until after the deceased officer had shot at him, sufficiently showed alleviation that would preventpresumption of malice arising from the fact of intentional killing.

7-11. The rulings announced in headnotes 7, 8, 9, 10, and 11 do not require elaboration.

Judgment reversed. All the Justices concur, except Jenkinsand Duckworth, JJ., who dissent.