The plaintiff in error, Allen Smith, was convicted of the offense of assault and battery in the City Court of Stephens County. Construing the evidence in its light most favorable to support the verdict, the jury was authorized to find facts substantially as follows: that on Saturday afternoon, January 13, 1950, the defendant was in his home with his wife and nine-year-old daughter; that he had been drinking; that because he had been drinking, his daughter went to the police department and asked them to come to their home; that she testified she told the police her mother had sent her, but that she had actually slipped off and gone to the police of her own accord; that the chief of police then directed Police Officer Rickman, named in the accusation as the person upon whom the assault and battery was committed, to go to the house and see what the defendant's wife wanted; that the defendant came to the door and asked the police officer what he wanted; that thereupon the defendant's wife in his presence told the officer that the defendant had come in drunk and jumped on her, and that she wanted the officer to take him to jail until Monday, at which time he was to be tried on another case. The officer, who had no warrant for the arrest, then attempted to arrest the defendant for public drunkenness, disorderly conduct and resisting an officer; upon the defendant manifesting a disinclination to submit under these particular facts and circumstances, he then radioed another officer to assist him. When the second officer arrived, also without a warrant, the defendant was holding Rickman at bay with a German rifle. The evidence further showed that as the two officers approached, the defendant charged at Rickman with the barrel of the rifle in such way that the sight on the rifle barrel cut his left hand, and that, notwithstanding his efforts to resist the arrest, the defendant was arrested and placed in jail. The defendant's statement, supported by the testimony of one witness, was to the effect that Rickman had tried to carry the gun away and the defendant wrested it from him, that he had refused to be placed under arrest without a warrant but had told the officers that if they produced one he would go peaceably. This was contradicted by the testimony of the police officers.
Following his conviction, the defendant filed a motion for a new trial which was later amended by the addition of various special grounds. The overruling of this motion is assigned as error.
(After stating the foregoing facts.) 1. Error is assigned on the following charge of the court: "We are not trying the question of resisting an officer. The question for you to determine is whether or not an assault and battery was committed on this occasion." Error is also assigned on the court's refusal, on timely written request, to charge as follows: "I charge you that one upon whom an arrest is unlawfully being made by an officer, that such person sought to be arrested has the right to resist force with force proportionate to that being used in detaining him, and that if such arrest or attempted arrest by such an officer is unlawful, and in the progress of the transaction the officer is about to commit an injury upon the party whom he seeks to unlawfully arrest and so acts and makes a show of violence as to excite in the person sought to be arrested the fears of a reasonable man that an injury is about to be committed upon him, and such person acts under the influence of those fears, and not in a spirit of revenge, he may protect himself, although it may be necessary to injure the officer for that purpose."
It is not contended by the State that the defendant used too much force to resist an illegal arrest, the contention being that he used some force to resist a legal arrest. Therefore, the very gravamen of the offense here charged is an assault upon a police officer engaged in making a legal arrest, since the repulsion by proportionate force of an illegal arrest does not constitute a crime.
In Thomas v. State, 91 Ga. 204, 206 (18 S. E. 305), it was held as follows: "No one who properly appreciates the sacredness of personal liberty and the jealousy of the law in guarding the same can doubt that as a general rule the law requires a warrant in order to render an arrest legal." See also Porter v. State, 124 Ga. 297 (52 S. E. 283); Vlass v. McCrary, 60 Ga. App. 744, 748 (5 S. E. 2d, 63). Code 27-207 provides that an arrest without a warrant can be made by an officer of the law only (1) where the offense is committed in his presence; (2) where the offender is endeavoring to escape; or (3) where for other cause there is likely to be a failure of justice for want of an officer to issue a warrant. There is no evidence that the defendant committed any crime in the officer's presence. The officer testified that the defendant was drunk. However, he did not testify in what manner he made his drunkenness manifest. He was also, according to the undisputed evidence, in his own home, which is not a violation of Code 58-608 making public drunkenness a misdemeanor. See Marshall v. State, 70 Ga. App. 106 (27 S. E. 2d, 702). The officer stated he arrested the defendant for disorderly conduct. Disorderly conduct, how ever, is not a crime prescribed by state law; no city ordinance was offered in evidence, and the testimony does not disclose whether the defendant was inside or outside the city limits of Toccoa at the time. Courts cannot take judicial cognizance of the existence of city ordinances. See McDonald v. State, 152 Ga. 223 (109 S. E. 656). There was no evidence that the defendant was endeavoring to escape, nor does it appear there was likelihood of a failure of justice for want of an officer to issue a warrant. The evidence affirmatively shows that Officer Rickman radioed another officer to come to the home of the defendant and help him make an illegal arrest. He should have, while thus radioing, instructed the other officer to procure a warrant before coming, so that the arrest would be legal. Thus, the evidence demands a finding that the arrest was illegal and the force used in resisting it was not in excess of the force of invasion.
It also appears that the sole defense was justification. The request submitted and refused by the trial court is a fair statement of this principle of law, couched substantially in the language of Norton v. State, 137 Ga. 842 (3) (74 S. E. 759). A defendant is entitled to have the unlawfulness of the arrest sought to be made considered in connection with the evidence and statement as applied to this defense. Yates v. State, 127 Ga. 813, 820 (supra). Failure to charge on this subject under these circumstances is reversible error. Porter v. State, supra, p. 304; Wall v. State, 153 Ga. 309 (9) (112 S. E. 142). The trial court here not only did not give the charge as requested, but did charge that the jury was "not concerned with the question of resisting an officer." This charge, as well as the failure to charge as requested, constituted error requiring a reversal.
The trial court erred in overruling the motion for a new trial as amended.
Judgment reversed. MacIntyre, P. J., and Gardner, J., concur.