Deal v. State

Wade, J.

We deem it unnecessary to discuss any of the rulings stated in the headnotes, except that covered by the 7th headnote.

. The trial judge in this case apparently charged the jury in conformity with the rulings made in Manson v. State, 14 Ga. App. 837 (82 S. E. 763), and in the great number of cases decided by this court which are cited in support of that decision. After he had charged them that-.“provocation by words, threats, menaces, or contemptuous gestures shall in no case be sufficient to free the person killing from the crime of murder” (Penal Code, § 65) he gave them, in another part of his charge, the following instructions: “In determining whether or not the defendant acted upon the fears of a reasonable man, you are confined to no fact or circumstance. While words, threats, menaces, or contemptuous gestures can never justify the excitement of passion, I do charge you that under the doctrine of reasonable fears, you have the right to consider words, threats, menaces, and contemptuous gestures, acts, and everything apparent to the defendant at the time of the homicide, in determining in your province, as sole judges of the facts of this case, . . whether or not the defendant was acting under the fears of a reasonable man.” Exception was taken to the instruction quoted from section 65 of the Penal Code, supra, touching words, threats, and menaces, on the ground that the court erred in failing to instruct the jury in immediate connection therewith that words, threats, and menaces might be considered by them in determining whether or not the defendant acted under the fears of a reasonable man at the time the fatal shot was fired. It is insisted that the qualification that words, threats, and menaces might justify the killing, if the jury concluded that they were sufficient to excite the fears of a reasonable man, should have been • given in immediate connection with the previous instruction as to words, threats, and menaces. So far as we have ascertained from an examination of its previous decisions, this court has never gone so far as to hold that the qualifying instruction referred to must be given in immediate connection with the general instruction that provocation by words, threats, and menaces would in no case be sufficient to relieve a defendant from the crime of murder. Nevertheless, in view of the numerous decisions by this court holding it to be error for a judge to give section 65 of the Penal Code in charge to the jury without further instructing them (even where not requested to do so) that provocation by words, threats, and menaces might be sufficient to excite the fears of a reasonable man and justify him in slaying his opponent on account of such fears so aroused, we thought it best to certify the question raised in this record to the Supreme Court, and also to propound to that court the specific question whether or not the ruling in the Manson case, supra, was in conflict with certain rulings by the Supreme Court on the general question there decided.

It may not be amiss for the writer to say that while he was in part responsible for the decision in the Manson case, he nevertheless believed, at the time that decision was rendered, that the rulings of the Supreme Court in Price v. State, 137 Ga. 71 (72 S. E. 908), and Futch v. State, 137 Ga. 75 (72 S. E. 911), as well as other rulings by that court, were entirely at variance with the many rulings of this court upon which the decision in the Manson case was based. Owing to the illness and absence of one of the Judges of this court when the decision in the Manson case was made, the previous rulings of this court could not be questioned and reviewed in the manner prescribed by law, since this could be done only by the concurrence of a full bench (Civil Code, § -6207), and the writer could not by his unaided efforts certify the question to the Supreme Court for solution. It is therefore unnecessary to say that the holding by the Supreme Court in the present case, that the rule laid down in the Manson case was in conflict with the rulings of the Supreme Court on the general subject, created in the mind of the writer no especial sensation of surprise. In fact the entire court as now constituted was rather of the opinion, when the question was certified to the Supreme Court, that several recent rulings of the last-named court, including that in Butler v. State, 143 Ga. 484, were perhaps altogether at variance with the various rulings of this court on the subject. Since the decisions of the Supreme Court are binding as authority on this court, we might have acted on onr interpretation of the several pronouncements from that court referred to, and have in terms overruled the previous holdings of this court, but, considering the importance of the question and the advisability of removing all confusion by having the matter definitely determined by the court having final authority in determining the law of the State, we thought it best to certify the point to the Supreme Court, and obtain a clear and authoritative utterance from that court. By reference to the decision of the Supreme Court in this case (145 Ga. 33 (88 S. E. 573)), the reasons for the ruling will be seen, and it is unnecessary for us to add anything to what is there explicitly set forth. Judgment affirmed.