110 Ga. 754 | Ga. | 1900
The accused was tried upon an indictment by the grand jury of DeKalb county, for the offense of assault and battery upon one Lively. The evidence for the' prosecution shows that at the time and place alleged in the indictment the accused, while aboard a street-car, without provocation, made a violent assault upon Lively, who was also a passenger upon the car, striking and wounding him in the face with an umbrella. No evidence was introduced in behalf of the accused. He made a statement in which he claimed that the difficulty originated on account of angry feelings entertained against him by Lively, resulting from a suit that accused had brought against Lively to recover an attorney’s fee for services. He stated that, three or four times before this difficulty, Lively had made grimaces and facial expressions of contempt towards him, and that he finally told him if he did not cease he would get into trouble. On the occasion of the difficulty, accused stated, Lively again commenced this conduct by making grimaces, “ and then it happened. ” The accused was found guilty, and excepts to the judgment of the court overruling his motion for a new trial.
On .the trial of the case the accused offered to prove by the prosecutor, Lively, that he had, several days before this diffi
It does not appear from the record that the judge excluded from the jury the consideration of such conduct in passing upon the guilt or innocence of the accused; for in his order overruling the motion for a new trial he states: “ The evidence in this case showed an unprovoked assault and severe beating at the time, and no provocation which would justify such a beating even by the defendant’s statement, his statement being that the prosecutor stared at him and grimaced. Mr. Lively is a very-young man and a very small one physically. Mr. Behling is-much older and much larger physically. ” The court further-stated that, while the requests as made were not given, the-charge to the jury “was in effect, on these various questions, that provocation to justify an assault and battery must be present and must be such as [in] the opinion’ of the jury would be-sufficient.” Even if under any circumstances, then, such conduct as herein set up as a'defense could in law justify an assault, we would conclude from the record before us that the defendant has had a fair trial, and that there was no error committed which would authorize an interference by this court with the discretion of the trial judge in refusing his motion for a new’ trial.
Judgment affirmed.