38323.

#### SHIRLEY v. CITY OF COLLEGE PARK.

Gardner, Presiding Judge.

1. Since the offense of driving while under the influence of intoxicants is a State offense, the Judge of the Recorder’s Court of the City of College Park did not err in binding the defendant over to the Criminal Court of Fulton County for this offense.

2. City police' officers observing the defendant driving within the City of College Park, the automobile weaving from one side to the other of the highway in such a manner as to be a hazard to other traffic, were justified in following the de- ■ fendant, signalling him to stop and, when he refused to stop, in pursuing, stopping, and arresting him, without first going to the proper authorities and obtaining a warrant for his arrest. See *Gordy v. State,*93 Ga. App. 743, 748 (92 S. E. 2d 737). This is.true although the city police officers did not succeed in apprehending the defendant within the city limits of the municipality, and, when he stopped, the automobile' was actually located in a small piece of unincorporated territory completely surrounded by the municipality. -

3. The defendant w.as arrested, tried, and convicted in the recorder’s' court for a violation of a city ordinance forbidding the use of profanity within the limits of the municipality. The acts of using .profanity were committed after the defendant had been returned to a point within the city limits, and seem to' have been triggered by the defendant’s desire to protest the circumstances of his arrest for drunk driving. While officers cannot illegally arrest a person for a given offense and then make out *that*offense by acts which the ' defendant commits in protesting the illegal arrest, yet a defendant, even though under arrest, may be guilty of a separate and distinct offense, and he cannot defend merely by showing he was under a lawful arrest at the time of the sec*11ond offense. See *Finch v. State,*101 Ga. App. 73 (112 S. E. 2d 824). Nor is this ruling controlled by *Trowbridge v. Dominy,*92 Ga. App. 177 (88 S. E. 2d 161), the holding in that case being that a defendant may not be bound over to a State court on a State offense and at the same time convicted in a municipal court for a violation of a city ordinance which is part and parcel of the offense for which he is bound over. Since the city ordinance here covering the offense of the use of profanity in no way covers the same subject matter or transaction as the State law covering the offense of driving while under the influence of intoxicants, that rule does not apply here, and the city ordinance is not void as being a special law covering a subject matter regulated by a State statute.

Decided June 29,1960.

*Preston L. Holland,*for plaintiff in error.

*Henry G. Crawford,*contra.

4. Although counsel for the plaintiff in error contends in his brief that the ordinance relating to profanity under which, according to the stipulation and the answer of the recorder, the defendant was convicted, is also void as being a special law covering the same subject matter as *Code*§ 26-6303 regarding the use of opprobrious words or abusive language tending to cause a breach of the peace, this assignment of error is not made in the petition for certiorari and will not be considered here.

The Judge of the Superior Court of Fulton County did not err in overruling the petition for certiorari from the judgment of conviction in the Recorder’s Court of College Park.

*Judgment affirmed.*

*Townsend, Carlisle, and Frankum, JJ., concur.*