concurring in part and dissenting in part.
I concur in Division 2 of the majority opinion and therefore agree that the conviction of Dr. Dinnan must be reversed for the reason set forth in that Division. However, I strongly disagree with the conclusions of the majority in Division 1 and firmly believe that the trial court committed no error in failing to submit to the jury the issue of justification based upon a citizen’s arrest. The majority holds that “the refusal by the trial court to present to the jury the sole defense offered by Dr. Dinnan and his son Jim was prejudicially erroneous and requires a reversal of each conviction.” However, there is no necessity of charging on a sole defense if it is not supported by the evidence. Although the majority purports to “pretermit” whether or not the trial court was correct in concluding that there was no evidence to show a “completed citizen’s arrest,” I believe that the trial court was clearly correct and that there was no evidence from which a jury could have found a lawful citizen’s arrest. The real basis of the reversal is that the evidence raised an issue as to the state of mind of Dr. Dinnan at the time he attacked the officer, “thus presenting an issue as to whether Dr. Dinnan acted with criminal intent in touching Wagner . . .” (p. 195 of the majority opinion.) However, the overall charge of the trial court clearly, completely and correctly instructed the jury with regard to the necessity of criminal intent. Therefore, the only issue is whether or not the trial court should have allowed the jury the option of finding that Dr. Dinnan’s claimed “intent” to effect a citizen’s arrest was justification.
OCGA § 16-3-20 (4) provides that the defense of justification can be claimed: “When the person’s conduct is reasonable and is performed in the course of making a lawful arrest.” (Emphasis supplied.) Thus, a lawful arrest provides a justification defense to the arrester under OCGA § 16-3-20 (4), but an unlawful arrest subjects the arrester to potential liability for an “assault.” Coleman v. State, 121 *198Ga. 594 (49 SE 716) (1904). The premise of this dissent and my disagreement with the majority is that, as a matter of law, there was no citizen’s arrest. In this connection, the majority seems to concede that the citizen’s arrest is an issue only insofar as appellants assert that that was what Dr. Dinnan intended rather than a battery. However, what appellants subjectively intended cannot create a legal arrest out of what was an illegal arrest as a matter of law. There is a very great difference between conduct which is justified under the law and conduct which is taken under a misapprehension of what the law would deem to be justified under the circumstances. It is clear that mistake of law is not a defense to criminal conduct.
The majority apparently seeks to equate appellants’ citizen’s arrest/justification defense with self-defense/justification. In my opinion, there is no valid analogy. Self-defense/justification is predicated upon the actor’s reason to believe that physical force is necessary to defend himself. See OCGA § 16-3-21. Citizen’s arrest/justification is predicated upon a lawful arrest, not a reasonable belief that an arrest is authorized. If a defendant in a criminal case is mistaken about the actual need to defend himself, but his fears in that regard are nonetheless reasonable, he is mistaken as to a fact and entitled to a charge on self-defense/justification. See Ellison v. State, 158 Ga. App. 419 (280 SE2d 371) (1981). However, in the instant case, appellant is mistaken as to the law. This mistake constitutes no defense to a criminal charge. While the law recognizes that it is possible to be mistaken as to whether such facts exist as would create a situation in which the law would justify conduct, the law does not recognize that it is possible to be mistaken as to what conduct the law would deem to be justified under the circumstances.
For all of these reasons, it is my opinion that the record shows clearly that, as a matter of law, there was no completed citizen’s arrest and, therefore, the trial court’s charge in this connection was correct. I respectfully dissent to Division 1 of the majority opinion.