Vernon v. State , 146 Ga. 709 ( 1917 )

GÍlbert, J.

(After stating the foregoing facts.)

1. During the trial of this ease, and before a full jury was selected and sworn, counsel for the accused filed a motion to declare a mistrial, and asked the couit to rule that the solicitor-general was disqualified, and for the appointment of a solicitor-general pro tern, to conduct the case, upon the ground that the solicitor-general had employed Mr. J. Z. Foster to assist in the prosecution of the case, and that the solicitor-general was solely and individually responsible for the payment of the fees of his associate counsel for his services in the prosecution. The court overruled the motion, and refused to declare a mistrial. We think there was no error in so ruling. We do not overlook the expression that the solicitor-general was “solely and individually responsible for the payment” of the fee of employed counsel. Considering that the interest of the solicitor-general was official only, and the duties to be performed by the employed counsel, the inference is that the employment was by the solicitor in bis official capacity for assistance to him in his official capacity, and that the payment fox the services was to be made in the official capacity of the solicitor. To hold that this effected a disqualification would be unreasonable. If the employment of counsel to assist in the prosecution is a disqualification, why not the employment of a stenographer to assist the solicitor-general in a clerical capacity; and why not the incurring of any other incidental expense .to enable him to better perform his official duties? The illustration might be carried on ad infinitum, and the inevitable result of such construction would be to tie the hands of the prosecuting officers, who are important factors in the efforts to suppress and punish crime. When these officers are overburdened with work, and are willing to compensate others to secure assistance in their manifold and arduous duties, their efforts are to be commended, rather than held to work a disqualification. The facts in the cases of Baker v. State, 97 Ga. 452 (25 S. E. 341), Hicks v. Brantley, 102 Ga. 264 (29 S. E. 459), and Nichols v. State, 17 Ga. App. 593 (87 S. E. 817), bear no relation whatever to the facts in the present case.

2. According to the rulings in Rumsey v. State, 126 Ga. 419, 423 (55 S. E. 167), Mize v. State, 135 Ga. 291, 296 (69 S. E. 173), and Peterson v. State, 146 Ga. 6 (90 S. E. 282), the evidence raised the issue of voluntary manslaughter. The court having failed to submit this issue to the jury, error resulted for which a reversal must follow. The evidence for the accused, if true, tends to show that he came to his father’s house on hearing outcries by his sister, and on his arrival the sister related to him, in the presence of their father, the effort of the father to outrage her; that the father cursed the daughter vilely, and “started at her;” that the accused stopped him, and the father threatened to kill the son “and the last one” of them, and ran his hand in his pocket and started toward the accused. If this is the truth of the case (of •which we express no opinion), the jury should have been allowed to decide whether or not these facts amounted to an actual assault, or to other equivalent circumstances to justify the excitement of passion, and to exclude all idea of deliberation or malice, either express or implied. The decisions above cited, which were applied to similar facts, discuss the subject fully, and render any further elaboration unnecessary.

3. Besides formally requesting the court to reduce his charge to writing, counsel for the accused presented in writing twenty-three formal requests to charge the jury, comprising seven typewritten pages. These requests consisted in the main of numerous repetitions of the same principle, in language slightly varying, and in repetitions of the doctrine of reasonable doubt. In so far as these requests were legal and applicable, they were appropriately expressed and included in the court’s instructions to the jury. It is a needless burden upon the trial court, as well as upon this court, to include in the record voluminous matter, consisting mainly of repetitions. The rule is well established that the trial court is never required to repeat his instructions to the jury, however appropriate in principle, and correct in expression, a request for such repetition may be.

A number of these requests were, as stated in the brief of counsel for the accused, drawn from expressions found in the case of Cumming v. State, 99 Ga. 662 (27 S. E. 177). Since all of these requests embodied the same principle,- a discussion of one will suffice for all. The court was requested to charge as follows: “Mere threats and menaces may under some circumstances be sufficient to justify a killing. Any overt act of a threatening nature, short of an actual assault, is a menace. A menace is a show of an intention to inflict evil; to menace is to act in a threatening manner.” The court did not err in refusing so to charge. While such language is found in the Gumming case, it must be construed in the light of the whole case. Separate sentences apart from the whole are calculated to mislead. Language, however proper when used by this court in the discussion of a particular case, is often inappropriate as an instruction to be given by a trial judge to a jury in another ease. To say, without more, that mere threats and menaces may under “some circumstances” be sufficient to justify a killing would not only be misleading, confusing, and untrue, but would be in the teeth of the statute (Penal Code of 1910, § 65) ■and the whole line of judicial interpretation. Malone v. State, 49 Ga. 210.

In the hope of clearing away and removing, as far as possible, a wide misconception of the Gumming casej supra, we take occasion to say what has already been said by this court'in the strongest language. The Gumming case was never intended to, and does not, weaken or qualify in any respect the law against murder. The law .of justifiable homicide has not been extended in any respect whatever by the decision in the Gumming ease; In Robinson v. State, 118 Ga. 198 (44 S. E. 985), Mr.'Justice Lamar, speaking for the court, said: “ That words, -threats, menaces, and contemptuous gestures will not justify the taking of human life is as old as our criminal law. It has been reaffirmed and re-enacted four times in this State.” As was said in Price v. State, 137 Ga. 71 (72 S. E. 908): “One who slays for no other reason than that he is provoked by words, threats, menaces, or contemptuous gestures of the person slain is guilty of murder. Yerbal threats or grimaces do not excuse a killing. On the other hand, the law justifies the taking of human life by a person under the influence of a reasonable fear that a felony is about to be inflicted upon his person, to prevent which he kills his adversary.”

In Deal v. State, 145 Ga. 33 (88 S. E. 573), the question was squarely raised by a certification from the Court of Appeals. Mr. Justice Evans, speaking for this court, clearly, convincinglj', and-, conclusively demonstrated the fact that • the law of justifiable homicide had undergone no change. He said: “If one kills another solely because he is provoked by words, threats, menaces, or contemptuous gestures on the part of his victim, the statute brands the slayer as a murderer. The code section defining voluntary manslaughter deals with provocation as reducing the homicide; and not with conduct on the part of the decedent calculated to excite the fears of a reasonable man that a felony is intended against the slayer’s person, or that his life is in imminent danger. Provocation is not an element in self-defense or justifiable homicide. Adkins v. State, 137 Ga. 81 (6) (72 S. E. 897); Wharton on Homicide, § 235. The plea of self-defense rests upon the idea of necessity, apparent or real, which in law will excuse one for so grave an act as the taking of human life. A plea of self-defense is not -sustained where it appears that the slayer took the life of his victim solely because-he was provoked by words, menaces, threats,, or contemptuous gestures. Any attempt to inject the law of defense of person or life in the definition: of voluntary manslaughter would tend to a confusion rather than a differentiation of these two phases of homicide. It is certainly the better practice in instructing the jury, where the law of voluntary manslaughter is applicable,' to submit the question independently of the instruction on justifiable homicide.” In Malone v. State, supra, the killing occurred in a brothel, and the defense was that the deceased put his hand on his hip and said: “I will shoot,_ you son of a bitch, if you touch my woman.” Chief Justice Warner, recording the judgment of a' unanimous bench in clarion tones which "have never been surpassed, said: “These are the words, threats, menaces, and gestures which it is claimed, under the law, will free the defendant from the guilt and crime of murder in shooting the deceased. Only that, and nothing more. This court will avail itself of the present occasion to announce to the public from this bench, with all the emphasis which its judgment can impart, that provocation by words, threats, menaces, or contemptuous gestures will in no ease be sufficient to free a person, who kills another by shooting him, from the guilt and crime of murder. The law so declares, and it is the imperative duty of the courts so to administer it, for the protection of society and human life. Mere words, threats, menaces, or contemptuous gestures are no considerable provocation in the eye of the law, and therefore malice shall be implied.” Such was then the law, is now the law, and doubtless will ever remain the law.

4. It was not error to admit evidence to show good character on the part of the deceased. Crawley v. State, 137 Ga. 777 (74 S. E. 537). It was not error to reject evidence of specific acts to show the bad character of the deceased. Andrews v. State, 118 Ga. 1, 3 (43 S. E. 852).

Judgment reversed.

All the Justices concur.