2 Ga. App. 734 | Ga. Ct. App. | 1907
(After stating the facts.)
Judges have to declare the law as they find it to be; and not as they personally wish it to be. Every man who is acquainted with' the God-given instincts of motherhood, which impel every true mother to fly not only to the protection of her child, but also to vindicate wrongs done it, realizes what a strong excuse this natural impulse furnishes for her conduct under circumstances such as this case discloses, and also respects her the more because she so loves and so acts. We would, if in duty we could, strain the tethers of the law which binds us, in order that we might give this mother a new trial. But what is the law? A mother may justify the commission of an assault and battery by proof of any act done to her child, which if clone to herself personally would furnish like
The law will justify an assault for less necessity than it would a homicide. One may strike another who has just hit him, not merely to prevent another immediate blow, but to prevent future similar outrages. This much we deduce from the statement of Blackstone above; this much the law allows to the individual by way of redressing his own wrong and preventing future wrong; but after the initial attack is ended and the immediate affray is over the law withdraws its permission for a further breach of the peace and compels the injured party to resort to the courts for his redress.
It is argued to us, that in this case, if the accused had killed the prosecutor, the law would have given such effect to the previous wrongful conduct of the latter and the passion aroused thereby that the homicide might be reduced from murder to manslaughter; and this we concede to be true. It is further insisted that a provocation to which the law gives such effect as to make it mitigation for a homicide ought to have at least enough efficacy to justify a mild battery. The distinction is this: murder is an unlawful killing with malice; manslaughter is an unlawful killing in anger without malice; proof of prior provocation may exclude the idea of malice in the homicide, but does not exclude the idea of unlawfulness; it merely substitutes the element of anger without malice for the element of malice, thus distinguishing the of-fences. Battery is the unlawful beating of another, whether it be done with malice or without malice, but in anger. Provocation which merely substitutes into the offense the element of anger for that of malice does not alter the nature of the crime; the ele-' ment of unlawfulness, which in battery is the only necessary element, remains.
Judgment affirmed, with direction.