Raines v. State

36 S.E.2d 64, 73 Ga. App. 177, 1945 Ga. App. LEXIS 417

• Court: Court of Appeals of Georgia
• Decided: November 17, 1945
• Docket: 30985.
• Status: Published

Opinions

Per Curiam.

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). In Fish 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.