Glanton v. State , 1920 Ga. App. LEXIS 31 ( 1920 )

Luke, J.,

dissenting. I do not agree as to the correctness of the charge of the court. Upon the question of uncommunicated threats, I think the court, without request so to do, should have charged the jury that they could consider uncommunicated threats, for the purpose of showing who began the affray, and for the purpose of corroborating evidence of communicated threats. See Warrick v. State, 125 Ga. 133 (3) (53 S. E. 1027), and cit.; Helms v. State, 136 Ga. 799 (72 S. E. 246).

The instructions given as to threats (in addition to the language of section 65 of the ’Penal Code as to provocation by threats) were as follows: “Now, you will observe that while I charged you, upon the law of voluntary manslaughter, that the law declared that provocation, with emphasis upon the word ‘provocation/, by words, threats, menaces, or contemptuous gestures, shall in no case be sufficient to free the person killing from the guilt and crime of murder — while that is true, if the killing was provoked only by threats, or words, or menaces, or contemptuous gestures — if the killing that is unlawful is provoked only by one of those things enumerated, the law says that is murder. However, gentlemen, do not get that confused with the law of justifiable homicide; for, while words, threats, menaces, or contemptuous gestures are not sufficient provocation to justify- a killing, or to reduce it from murder to manslaughter, yet the jury may consider threats, if the evidence shows any words, or menaces, or contemptuous gestures, 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 that his life was in danger, or' that a felony was about to be committed on him, and if he did act under such fears, in good faith, and not in a spirit of revenge, words, threats, menaces, or contemptuous gestures may justify the killing; and in passing upon the question of whether or not the defendant acted under the fears of a reasonable man— whether he acted in good faith, or in a spirit of revenge — whether he acted under the fears of a reasonable man that his life was in danger, or that a felony was about to be committed, the jury may consider threats, if the evidence shows any, may consider evidence of the character of the deceased, if the evidence shows it, for violence or turbulence, in passing upon the question of whether or not the accused acted in good faith and under the fears of a reasonable man that his life was in danger, or that a felony was about to be committed upon him; and if he did, the defendant would be guilty of no offense, and should be acquitted.”

Emmett Smith, Smith & Smith, for plaintiff in error. C. E. Roop, solicitor-general, contra.