Raines v. State , 73 Ga. App. 177 ( 1945 )

The defendant was convicted of an assault and battery. The general grounds of the motion for a new trial are without merit; but, because of an error in the charge of the court, as pointed out in the opinion, another hearing of the case is required.

DECIDED NOVEMBER 17, 1945. The defendant was convicted of assault and battery. He filed a motion for a new trial on the general grounds, and thereafter added several special grounds. The motion was overruled. The defendant assigns error on this judgment. The evidence shows substantially that the defendant, Johnny Raines, and the prosecutor, C. B. Greene, had been working for the Buck Ice and Coal Company in Macon, Georgia, for approximately twelve years. The duty of the defendant was driving a truck delivering ice. The prosecutor was the production engineer, one of his duties being to supply the trucks with gas and keep a check on the gas used. It was the custom for the truck driver, there being some fifteen or twenty of them, to head their trucks into the filling station from the front of the building. On the back of the building was a parking space. When the day's work ended, the truck drivers would drive around the plant and park their trucks. On the day of the occurrence in question the defendant drove his truck around the building at about the time for him to quit work. He did not drive it in the usual and customary manner for his truck to be serviced. The prosecutor received word that the defendant desired his truck serviced. The prosecutor, having seen the defendant drive his car around the building and not in the usual and customary way that the trucks were serviced, and not being in position to see the truck the defendant used, asked the defendant where he had parked his truck. The defendant remarked "Where in the hell do you think I parked it?" The prosecutor then said "You are a bigety s.o.b." The defendant then remarked, "You are another one." At this time the prosecutor and the defendant were about ten or twelve feet apart. When the defendant remarked "You are another one," the prosecutor reached for a pair of ice tongs with the intention and purpose of hitting the accused with them. The tongs weighed about five pounds. Before the prosecutor threw or could strike the accused, the accused pulled from his pocket a pint bottle of whisky which he threw at the prosecutor, striking him on the head, whereupon the prosecutor threw the tongs at the accused, hitting him a glancing lick on the back. Then the defendant procured the ice tongs and threw them at the prosecutor, striking the prosecutor on the lobe of the ear, inflicting a wound which required four sutures. Third parties intervened and the fight ended.

The evidence further shows: The prosecutor testified: "I was not drunk, as I do not drink. I cannot swear to whether the defendant was drinking or not. I didn't notice anything about him whether he was drinking or not. He was just talking bigety and that made him act unusual. That made him look kind of suspicious. Ordinarily he would not do anything like he did or say anything like he said if he had not been drinking. I never called him a bigety s.o.b. — before that day. I do not use that kind of language around negroes or around anybody. That was the first time I had ever cursed him." 1. As a matter of law the evidence does not demand the conclusion that the prosecutor was the aggressor. The jury were authorized to find that the defendant by his words and conduct provoked the difficulty and provoked the prosecutor to use the opprobrious words attributed to him. The jury were further authorized to find that the accused was not justified, since he provoked the difficulty, if the jury so found, to retort "You are another one." The jury were further authorized to find, under such a situation, that the defendant was not justified in either striking the prosecutor with a bottle of whisky or in throwing and hitting the prosecutor with the ice tongs. At the time the defendant threw the ice tongs, the prosecutor was doing nothing to him, and the jury were further authorized to find that the defendant created the situation or emergency and never thereafter declined the struggle, and therefore was not justified in striking the prosecutor with the ice tongs. All of these were jury questions, and the verdict should stand insofar as the general grounds are concerned. But we think that the judgment should be reversed under a special ground, which we will hereinafter deal with more specifically. As to whether the jury were authorized to find that the accused was the aggressor, we wish to call attention to several decisions of this court, as well as of the Supreme Court. In Hamilton v. State, 9 Ga. App. 402 (71 S.E. 593), this court said: "In a prosecution under the Penal Code (1910), section 387, for using opprobrious words and abusive language, the sufficiency of the provocation which will justify the use of such words is a matter exclusively for the jury. The jury can not be instructed as a matter of law that, if one simply said ``Howdy' to the defendant, this would not be sufficient justification for the defendant to use opprobrious words and abusive language. Whether this would be sufficient provocation would depend on the manner of the salutation and the surrounding circumstances. There may be justifiable provocation where no words have been spoken. The sufficiency of the provocation depends, not only upon the language employed, but upon the relationship of the parties, the state of feeling existing between them, the tone, manner, and spirit in which the language is used, and other circumstances from which the jury may in some instances determine that words apparently or ordinarily innocent afforded reasonable cause for provocation under the circumstances or in the manner in which they were used. The question is so exclusively one of fact that any intimation or direction to the jury as to the weight or effect of any portion of the testimony illustrative of the subject of provocation is error."

In Jackson v. State, 14 Ga. App. 19 (80 S.E. 20), this court said: "On the trial of one indicted for using opprobrious words, it is for the jury to determine whether under all the facts and circumstances the words used were words tending to cause a breach of the peace, and whether there was provocation sufficient to excuse their use. It was therefore error to instruct the jury that if they should find that the defendant used the alleged opprobrious words, they would be authorized to find him guilty."

In Sherrer v. State, 17 Ga. App. 335 (2) (86 S.E. 735), this court said: "On the trial of one for using obscene and vulgar or profane language in the presence of females, it is for the jury to determine whether there was sufficient provocation to excuse their use." See also the several citations of our Supreme Court cited therein. See also Bagley v. State, 43 Ga. App. 105 (157 S.E. 904).

To the same effect, whether the provocation justified the use of opprobrious words, we call attention to the following Supreme Court decisions: Arnold v. State, 46 Ga. 457; Reid v.State, 71 Ga. 865 (4); Collins v. State, 78 Ga. 87, 88. In Meaders v. State, 96 Ga. 299 (22 S.E. 527), the Supreme Court said: "A wrongful trespass upon personal property in the presence of its owner may or may not amount to such provocation as will justify the latter in using to the wrong-doer on the spot opprobrious words or abusive language tending to cause a breach of the peace. When in the prosecution for using language of this kind such a trespass is alleged by the accused as his provocation for so doing, it should be left to the jury to determine whether or not there was in fact such a trespass, and if so, whether or not it was in their judgment sufficient to justify the accused." To the same effect, see Williams v. State, 105 Ga. 608 (31 S.E. 738); Echols v. State, 110 Ga. 257 (34 S.E. 289). InFish v. State, 124 Ga. 416 (52 S.E. 737), the Supreme Court said: "On the trial of one indicted for using opprobrious words and abusive language, it is for the jury to determine whether under all the facts and circumstances the words used were of such a character that the use of them was calculated to cause a breach of the peace, as well as to determine whether there was provocation sufficient to excuse their use. It is therefore error for the judge to instruct the jury as a matter of law that the words alleged in the indictment are opprobrious and abusive within the meaning of the statute, and that a given set of facts would not be a sufficient provocation for their use."

We therefore hold that it was a question for the jury whether the prosecutor was the aggressor and without justification used the opprobrious words attributed to him.

2. (a) Special ground 4 complains because the court failed to give in charge to the jury a certain request. This request was not only argumentative but as a matter of law was not adjusted to the facts in the case because it entirely assumed that the prosecutor was the aggressor. It was lacking in that it took no consideration that the jury were authorized to find that the accused was the aggressor because he provoked the difficulty.

(b) In special ground 5 exception is taken to an excerpt from the charge as follows: "Movant assigns error on the following charge of the court: As I have said, words which might be found by you to be opprobrious under certain circumstances, under different circumstances might not be so construed by you. Insofar as it constitutes one of such circumstances, the factor of difference in race between the prosecutor and the defendant would be a proper matter for your consideration, but only to the extent that such factor might serve to indicate to you that any words you may find were used were or were not, in fact, opprobrious words, as they have been defined." We think that this exception to the excerpt is well taken and requires a reversal of the case. We think that, under the facts of this case, "the factor of difference in race between the prosecutor and the defendant would be a proper matter for your consideration" should not have been charged. We are of the opinion that the case should be remanded for a new trial for the error assigned in this ground only. The other special grounds do not require a reversal.

Judgment reversed. All the Judges concur.