Gore v. State , 155 Ga. 642 ( 1923 )

Beck, P. J.

Joe Gore was tried upon an indictment charging him with the murder of J. H. Wynens, it being alleged in the indictment that the accused did feloniously kill the decedent by shooting him with a pistol. The defendant pleaded not guilty, and the jury trying the ease returned a verdict of guilty, and the defendant was sentenced to be hanged. He made a motion for a new trial, which contained the usual general grounds that the verdict was contrary to the evidence, contrary to law, etc. He subsequently filed an amendment consisting of several grounds. The court overruled the motion, and the accused excepted.

The first ground of the amendment to the motion for a new trial assigns error upon the ruling of the court refusing a continuance or postponement of the case. This ground is in part as follows: “ Because on the trial of said case, and during the trial of the same and at the call of the same, the court refused to grant a continuance of the said case from Friday afternoon until Monday morning, upon the statement of counsel as follows: Mr. Smith: I want to state this: I was just appointed in this case yesterday afternoon, and have not had time to prepare the case sufficiently to go to trial; and we would like to have until Monday morning to get rea.dy to try the case. Yesterday afternoon we went down to confer with the defendant, and we had not got started before I had to come back to court. Then I went to talk to him after court. We have not had time to talk to any of the witnesses.” When counsel finished his statement the court said: “ I will give you time to talk with them. If there is any reason why it should be postponed I will hear from you on that;” to which counsel replied, “I do not know except by general information what he will testify to. We have not been able to see him;” and then added, in reply .to a question by the court if that was all of the showing, “ That is all the showing we have.” There was no error in overruling the motion based upon this ground as set forth in the motion for a new trial. It is set forth here in its entirety. It is insisted that the court’s failure to grant a postponement of the case until the following' Monday was prejudicial to the accused, because his counsel had not sufficient time to go into the case and prepare the same for trial. It is not shown that when the case was called for trial subsequently to this motion counsel for the accused made any further request for a postponement; though the court had stated that after he had talked with the witnesses, if it should appear that there was reason for further postponement he would hear from counsel upon that subject. Attached to the record is the entire evidence submitted on the showing for a continuance, but it is apparent from the motion that the motion itself was based upon the ground set forth therein; and in passing upon the question of whether the court erred in not postponing the trial we consider the showing, that is, the statement of counsel, upon which movant bases the contention that the court erred in refusing the postponement. Upon examination, however, of all the evidence in regard to the question of continuance, it appears that a postponement of the trial was also based on the ground of the absence of a witness; but the judge states in a note that the absent witness was brought into court before the conclusion of the evidence. There is nothing appearing in the motion for a continuance to take the case out of the general rule that the judgment of the court below refusing a continuance or postponement of a trial will not be disturbed unless the wide discretion which the judge has in regard 'to such matters be abused; and it is not shown that there was such an abuse of discretion here. Charlon v. State, 106 Ga. 400 (32 S. E. 347); Kelloy v. State, 151 Ga. 551 (107 S. E. 488); Walton v. State, 79 Ga. 446 (5 S. E. 203).

The court, over objection, permitted a witness for the State to testify as follows: “He [the accused] didn’t say who that was. He said he was going to kill a man and go to the grave and see his dam toes stick up. That was in the same conversation at the same time he was talking about Wynens.” The objection urged to this testimony was that it did not show a threat made towards the deceased. Wynens was the name of the deceased; the accused was talking about Wynens; and that being true, the jury could infer from the connection in which the accused made the threat that he had the decedent in mind.

The rulings made in headnotes three, four, and five require no elaboration.

Error is assigned upon the following charge of the court: “ Now, gentlemen, the law says that provocation by words, threats, menaces or contemptuous gestures shall in no case be sufficient to justify the killing. Now, while this is true, that words, threats, menaces, or contemptuous gestures do not justify the killing, where there is no other provocation except words, threats, menaces, or contemptuous gestures, still you may consider, gentlemen, any words, threats, menaces, or contemptuous gestures, all of them or either, if the evidence shows any, in passing upon the question as to whether or not the defendant acted under the fears of a reasonable man, and in good faith, that his life was in danger, or that a felony was about to be committed upon him.” If the court had merely charged that “provocation by words, threats, menaces, or contemptuous gestures shall in no case be sufficient to justify the killing,” it might have been, under the ruling in the case of Cumming v. State, 99 Ga. 662 (27 S. E. 177), open to criticism as a part of the charge upon the subject of justificable homicide. As the statement of a general principle it is true that such provocation as that, indicated does not justify a killing; but when threats, menaces, or contemptuous gestures are of such a character and made under such circumstances as to excite the fears of a reasonable man that his life is in jeopardy or that a felony is about to be committed upon him, and under the influence of such a fear one slays a person uttering such threats or making such menaces as to justify the fear, the slaying would be justifiable homicide. And such is the doctrine laid down in the Gumming case, supra, which is relied upon very largely by counsel to show error in the charge just quoted. In the Cumming case it was said: “ It is complained that the court erred in charging that ‘ a fear growing out of and only supported by mere words, threats, menaces, or contemptuous gestures is not the fear which would justify or excuse another for committing a homicide.’ The things here mentioned, it is true, will not avail the person killing, when, in order to reduce the homicide to voluntary manslaughter, he sets up that the killing was done in the excitement of passion and because of provocation;' for the Penal Code, in dealing with this defense (§ 65), declares that ‘'provocation by words, threats, menaces, or contemptuous gestures shall in no ease be sufficient to free the person killing from the guilt and crime of murder.’ But it is not the law that none of these things shall be sufficient to produce such a fear as will justify a killing. The question of what is sufficient to reduce the grade of the crime where a killing is prompted by passion is one thing, and the question of what is sufficient to excite the fears of a reasonable man that a felony is about to be committed upon him is another and very different thing. The Penal Code (§ 71) declares that ‘A bare fear of any of those offenses to prevent which the homicide is alleged to have been committed, shall not be sufficient to justify the killing. It must appear that the circumstances were sufficient to excite the fears of a reasonable man;’ but it does not undertake to define what circumstances shall or shall not be sufficient to excite such fear.” The charge as'given in the instant case which we are now considering is not in conflict with what is said in the Gumming case, because the court, while stating that it is true that threats, menaces, etc., do not justify a killing, where there is no other provocation, expressly stated to the jury that “ still you may consider any words, threats, menaces,- ot contemptuous gestures, all oi them or either, if the-evidence shows any, in passing upon the question as to whether or not the defendant acted under the fears of'a reasonable man, and in good faith, that his life was in danger, or that a felony was about to be committed upon him.” And we assume that in some other part of the charge the jury were instructed that if the defendant acted under the fears of a reasonable man that his life-was in danger, or that.á felony was about to be committed upon him, and the circumstances were such as to justify the existence of those fears, etc., and he fired the fatal shot under the influence of the fears, a verdict of not guilty should be rendered. We say that we assume that this charge,- usual in cases where the defendant ¡claims to have acted under the influence of fear that his life was in j.eopardy, was given; for it is not complained that the court did not give that charge in substance. We conclude that, the charge last complained of was not‘error. And having held that the other grounds of the motion do not require the grant of a new trial, the judgment of the court below is affirmed.

Judgment affirmed.

All the Justices concur, except Bussell, 0. J., and Atlcinson, J., dissenting.