(with whom CANDLER, J., joins), concurring specially. I concur in the judgment granting a new trial in this ease, but I am unable to concur in all of the reasoning on which this judgment is based. The charge of the presiding judge clearly contained one or more errors which necessitate the granting of a new trial. A patent error consisted in submitting to the jury for determination whether the defendant had in fact violated some of the *307penal ordinances of the town of Lumpkin, when there was no evidence whatever that he had done so. The proof on this subject was merely that the marshal had been informed that such a violation had taken place.
Somewhat greater latitude is allowed in regard to arresting for a felony than for a misdemeanor, but I am not prepared to concur in the idea that greater formality is required in arresting violators of municipal ordinances than criminals under the State law. This is not directly stated to be the rule in the opinion of the majority, but the reasoning seems to lead to that result. The legislative intent appears to be that under some circumstances arrests for disorders may be made without a warrant. Thus in reference to towns and villages for which incorporation is provided in the Political Code, §683, it is declared (§705) that it shall be the duty of the mayor to see that the peace and good order of the town or village are preserved, and that persons and property therein are protected, and to this end he may cause the arrest or detention of all riotous and disorderly persons in the town or village, before issuing his warrant therefor. The charter of the town of Lumpkin contains a similar provision. The charter of Temple contains authority to the clerk to issue certain writs, including warrants, though not mentioned in Williams v. Sewell, 121 Ga. 665. See Acts 1901, p. 658, section 23. By the Penal Code, §902, conductors of passenger-trains are invested with powers of police officers while on duty, and authorized to detain persons guilty of disorderly conduct on the train, and have them delivered to the proper authorities for trial as soon as practicable. In McRea v. Americus, 59 Ga. 168, Bleckley, J., said: “Police ordinances are at once family rules on a large scale, and State laws on a small scale. . . In a city, we think, a man may fight in a way to violate an ordinance, without being guilty of an assault and battery.” In Queen v. Atlanta, 59 Ga. 323, Jackson, J., said in a concurring opinion: “To hold a police court to strict pleading would be to destroy, almost if not altogether, its usefulness.” See also Johnson v. Americus, 46 Ga. 80; Floyd v. Eatonton, 14 Ga. 354; Williams v. Augusta, 4 Ga. 509; Hood v. Von Glahn, 88 Ga. 414; Littlejohn v. Stells, 123 Ga. 427.
A policeman performs the duty of arresting both for offenses against the State and those against municipal ordinances. He partakes both of the nature of'a constable, and a watchman at common *308law, with such added powers as may result from legislation. As to the right to arrest without a warrant at common law, and as to night watchmen, see 4 Bl. Com. 292; 2 Hale’s P. C. 98. The decisions cited from this State in the majority opinion arose in cases of arrests or oifenses against the State; but if section 896 of the Penal Code is to be treated as applying to arrests by policemen or marshals for violations of municipal ordinances, and as impliedly requiring a warrant, that section authorizes such an arrest without a warrant “if the offense is cpmmitted 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.” A policeman under city ordinances is as much under the protection of the law in making an arrest as any public officer. Johnson v. State, 30 Ga. 426. The expression “in his presence” does not necessarily mean in his sight. In Ramsey v. State, 92 Ga. 63, it was held,.that “An officer may arrest without warrant for wife-beating, if he arrives at the scene during the progress of or immediately after the beating, he being attracted thereto by the noise of the disturbance or the outcry of the woman.” In Brooks v. State, 114 Ga. 6, it was held, that: “If a policeman at a late hour of the night hear a pistol shot within two blocks of his beat, and immediately thereafter discover a man running from the direction of the shot and towards him, he has a right to arrest him without a warrant.” In Harrell v. State, 75 Ga. 842, it was held, that “Policemen ought to assist each other in arrests; and when one hails another to stop a man running to a bridge'which carries him into another jurisdiction, it is the duty of that other to seize and arrest the fugitive.” In Thomas v. State, 91 Ga. 204, supra, the evidence of the policeman was that he was called to arrest the accused by an old woman who kept a boarding house on the corner of Oak and Third streets in the city of. Macon, whose name he did not know or had forgotten; that she stated to him that the accused had broken into her trunk and had taken $29 and a few cents, and a coat; that she described the accused, and said she wished the policeman to look out for him; and that this was about three hours after the property had been stolen. ■ The court charged: “If you believe from the evidence that the officer had been notified to look out for him as a thief, and that evening he approached to arrest him, and the defendant fled before the officer drew the weapon and without' endeavoring to attack the *309■defendant in any way, the defendant while fleeing and the officer pursuing, he drew the pistol, fired upon him, and you believe the pistol was a weapon likely to produce, death, you would be authorized to convict him of assault with intent to murder.” It was held, that “This charge assumes that the facts enumerated would constitute probable cause for making the arrest without a warrant, whereas they might or might not, and whether they would or would not would be for determination by the jury in the light of all the circumstances attending the case, including the facilities for obtaining a warrant according to the spirit of section of the code.” Thus where it was attempted to make an arrest for the violation of a criminal law of the State, it was held that'the jury should determine whether there was probable cause for making the arrest without a warrant. In the present case I am of the opinion that there was sufficient evidence to authorize the judge to submit to the jury whether the offender was endeavoring to escape, or for any cause there was likely to be a failure of justice for the want of an officer to issue the warrant, if indeed the warrant was necessary. There was evidence to show that when complaint was made to the marshal of the town, the accused saw what was occurring and began to leave; that when the marshal approached him he ran away and could not be overtaken. If it should appear that one is guilty of disorderly conduct in violation of a municipal ordinance, and, upon seeing a policeman or the town marshal approaching, leaves the scene, starts in a walk, breaks into a run, and finally escapes from sight in the gathering gloom of the evening by running, so that he can not be found for the time being, it seems to me that it may well be submitted to a jury whether he was endeavoring to escape. It is true that the defendant obtained his gun, and about a half or three quarters of an hour later in the evening was found on the public square, where he attempted to kill the marshal when the latter appeared coming around a corner. The mere fact that he did not leave town is not conclusive that he was not attempting to escape. • Yery often the more populous centers afford a better means of hiding and escaping from justice than the sparsely settled country. Nor is the fact that he obtained his gun and was seen on the public square such conclusive proof that he did hot'intend to" escape as to authorize this court to assume the functions of a jury and determine that fact. It may be suggested that it was illogical for him *310to return to the public square if he intended to escape altogether, and that so doing indicated that the intention was only to escape from illegal arrest. To borrow the thought of a great jurist, it is illogical to commit crime; and if one does an illogical thing, it is not surprising that he does it in an illogical way, or acts illogically afterwards. The fact that the man ran and escaped from something is unquestionable. Whether his purpose was to escape altogether from arrest, or whether it was only to evade an illegal method of arrest, may well be left to the jury. This court may take judicial cognizance of many things, but I do not think that we can take cognizance of whether a fleeing violator of law intends to escape from arrest, or only from illegal arrest. Generally violators of law who flee are more interested in escaping arrest than in the question whether the officer is acting with due formality, or whether the arrest is to be classified as legal or illegal. In many instances of the commission of disorder, when the peace officer appears the guilty parties immediately cease their violation of law and walk or run away. Strictly speaking, the offense is often not committed under the eye or in the immediate presence-of the officer. But the gathered crowd is there, the disorder is going on until he appears or is sent for; perhaps there are visible evidences of a breach of the peace or of disorder abandoned at his approach; and surely the perpetrators will not be allowed to escape on the theory (determined by the court, not the jury) that they were running away from the scene of the offense lest they be arrested without a warrant. To lay down such a rule would be to largely destroy the efficiency of peace officers. While illegal arrests are to be discountenanced, and are no more approved by me than by my brethren, yet I think, under the evidence in this case, it was proper (certainly if the offense had been proved to have been committed by the defendant) to submit to the jury whether he was escaping, and whether the officer rightly undertook to arrest him without a warrant.