It is my opinion that the officers should have driven on their way upon ascertaining that *Page 201 the woman who lived at 28 Plant Street had no complaint against the defendant. At this time he was violating no law (see Ramey v. State, 40 Ga. App. 658 (151 S.E. 55), or ordinance, and the officers had already ascertained that he was not injured in any way. I think that by going over to the defendant and shaking him, the police officers committed an unlawful trespass upon the person of the defendant. This resulted in such retaliation on his part that it led to a brutal beating of the defendant by the officers, which apparently exceeded in force that required to defend themselves against the attack of the defendant. The evidence, therefore, in my opinion demands a finding that the police officers, in the first instance, committed a trespass on the defendant. However, construing the evidence in its light most favorably to support the judgment, as indeed we must, it is sufficient to show that the retaliation of the defendant exceeded the provocation of the officers and that its excess was unjustified. It was also violent, turbulent, quarrelsome, boisterous, and disorderly. His language was profane and his conduct tended to disturb the good order, peace, and dignity of the city.
The conduct of the officers on this occasion is not a proper subject of review by this court. It is, however, well for all public officers, whether they be judges or police officers, to remember that part of the Bill of Rights of the State Constitution contained in art. I, sec. I, par. I (Code Ann., § 2-101) as follows: "Public officers are the trustees and servants of the people, and at at all times, amenable to them." And fully realizing the right of and need for police officers to protect themselves from assault and injury against persons attacking them, they should, nevertheless, be mindful also of that part of the Bill of Rights contained in art. I, sec. I, par. 9 (Code Ann., § 2-109) as follows, "nor shall any person be abused in being arrested, while under arrest, or in prison."
Since the judgment is not contrary to law and is supported by some evidence, I concur specially in the judgment of this court affirming the judgment of the superior court overruling the petition for certiorari. *Page 202