Price v. State , 137 Ga. 71 ( 1911 )

Evans, P. J.

Buster Price was convicted of the murder of A. E. Massey, and recommended to mercy. He excepts to the overruling of his motion for a new trial.

1, 2. Complaint is made that the court refused ’to allow counsel for the accused additional time to that prescribed by the rule of court for the argument of the case; and that the court allowed counsel who concluded the argument for the State to make an improper reply to the argument of defendant’s counsel. The nature of the complaints and the rulings thereon are sufficiently stated in the first and second headnotes.

3. The homicide occurred at a junction of two railroads. -The decedent arrived on one train and immediately inquired of the station agent concerning a connection on the other road, and was referred to the engineer of the latter road. This occurred shortly before the homicide. Objection was made to this testimony, on the ground that it was hearsay and irrelevant. As bearing on the conflicting contentions as to who was the aggressor in the transaction wherein the deceased lost his life, his conduct just prior to the homicide was relevant. His inquiry of the station agent as to the schedule of- the connecting train just before the homicide was a circumstance tending to elucidate his conduct and was a part of the res geste. Mayes v. Power, 79 Ga. 631 (4 S. E. 681).

4. Impeachment of a witness by proof of previous contradictory statements involves two propositions, viz.: whether the witness made the alleged contradictory statement, and, if he made the contradictory statement, its effect on his present testimony. The charge complained of was substantially like that criticised in Powell v. State, 101 Ga. 9 (29 S. E. 309, 65 Am. St. R. 277), and was not subject to the criticism that the jury was limited to the determination of the factum of the making of the alleged contradictory statement, nor^that it was. equivalent to a peremptory instruction that if the testimony of the attacking witness is believed, the witness attacked is successfully impeached.

5. The court charged: “In addition to that, gentlemen, I charge you this, that the party who sets up self-defense to justify himself in taking human life, under the law of justifiable homicide, must be without fault at the particular time, and in the particular act. One can not by his own act or conduct create a necessity in another to defend himself, and then justify himself in killing the party who attempts to defend himself against the necessity of the defendant’s own creation. But of course that does not mean that he must be without any fault whatever during the entire transaction, but without fault at the time of the killing.” The evidence authorized an inference thát the accused provoked the difficulty and brought about the emergency which, as he contends, afforded a justification for the .homicide. One cannot create an emergency which renders it necessary for another to defend himself, and then take advantage of the effort of such other person to do so. Pryer v. State, 128 Ga. 28 (57 S. E. 93). This excerpt from the charge is in harmony with this principle of law.

6. Exception is taken to this portion of the court’s charge: “Applying the general principles that the court has given you, the court now charges you this: that if you believe from the evidence in this case beyond a reasonable doubt that the defendant, Buster Price, in Worth county, at or about the date alleged in this bill of indictment, or at any time previous to the finding and returning of this bill of indictment into this court, when actuated by malice, either express or implied, on account of any opprobrious words used to him by the deceased, or on account of other cause, with a pistol .shot and killed the deceased in the manner and under the circumstances alleged in this bill of indictment, then the offense of murder would be made out, and you would be authorized in convicting him.” Its vice is said to consist in stating an erroneous deduction from the stated hypothesis; that the use of the words “on account of other cause” deprived the accused of any defense. The criticism is clearly without merit. The instruction was to the effect that if the defendant killed the deceased in the manner and under the circumstances alleged in the bill of indictment, actuated by malice, which had just been defined as that deliberate intention unlawfully to take away the life of a fellow creature, the jury would be authorized to convict him. The use of the words “on account of other cause” at most could amount only to a verbal inaccuracy, and in connection with their context could not have misled the jury as to the meaning and intent of the court’s instruction.

7. In his instruction on the law of voluntary manslaughter the court defined that grade of homicide in the language of Penal Code (1910), § 65. Exception is taken to that.part of the code section which declares that “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,” as containing an implication that words and menaces are insufficient to excite the fears of a reasonable man that a felony is intended to be committed on his person, so as to justify a killing. We think this exception is entirely without merit. Surely it cannot be said that it is error to define manslaughter in the words of the statute. It is claimed that the statutory declaration, that provocation by words, threats, menaces, etc., shall not free the slayer from the guilt and crime of murder, militates against the code sections which justify a homicide by one who slays his antagonist under the influence of a reasonable fear that a felony is about to be perpetrated upon his person. The two principles of law are quite distinct. 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 billing. Oil 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 bills his adversary. A menace, as defined in Cumming v. State, 99 Ga. 662 (27 S. E. 177), may be sufficient to arouse such fear. As there defined a menace is “any overt act of a threatening character, short of an actual assault.” Provocation caused by a menace neither mitigates nor excuses a homicide. But the fear of a reasonable man, engendered by the overt menacing act, that a felony is about to be committed on him may be sufficient to acquit the slayer of blame for the homicide. The language excepted to in no way qualifies the law of justifiable homicide, and is not calculated to mislead the jury into such erroneous impression. The doctrine of the Gumming case is that the court should not instruct the jury that a menace, as there defined, will in no case be sufficient to arouse the fears of a reasonable man that his life or person is in peril of a felonious assault. It is a misapplication of its principle to apply it to an exception like the one under consideration.

8. The issues made by the evidence were clearly submitted, and the charge was not open to the criticisms made on it. The evidence authorized the verdict, which has the approval of the trial judge, and no sufficient reason is made to appear for the granting of a new trial.

Judgment affirmed.

All the Justices concur, except Beclc, J., absent, and Hill, J., not presiding.