7 Ga. App. 613 | Ga. Ct. App. | 1910
The plaintiff in error was convicted, in the county ■court, of a violation of section 396 of the Penal Code, in that, without provocation, he did use vulgar, obscene, and profane language in the presence of a female. His petition for certiorari was overruled by the judge of the superior court. On his trial he did not deny the use of the words charged against him, nor was any question made as to their objectionable character, but he insisted that they were not used without provocation, and that to authorize a conviction, it was incumbent upon the State to prove that they were used without provocation.
1. It is an essential principle of this offense that the words must be used without provocation, and it is incumbent upon the
2. The judge, in compliance with a timely request, wrote out his charge and read it to the jury. After the jury had been considering of their verdict for some little while, they came into court, and. the foreman inquired of the judge whether the jury, in the event they should find a verdict of guilty, would have the right to recommend the defendant to the mercy of the court. The judge told them that they could make such a recommendation if they desired to do so, but that it would have no legal 'effect and would not be-binding upon the court. Counsel for the plaintiff in error insists-that this was error, in that it added orally to the written charge which had been read. We do not think this reply by the judge to-the query of the jury was, as contended by counsel for the plaintiff' in error, an “additional charge,” within the meaning of .section 1030 of the Penal Code (Civil Code, §4318), as amended by the act-of 1897 (Acts 1897, p. 41). The Supreme Court, in the case of Harris v. McArthur, 90 Ga. 217 (4), (15 S. E. 758), construed the words “charges” and “charge” as embracing “any and all final instructions addressed by the court to the jury for the purpose of governing their action in making or aiding them to make a final disposition of the case in favor of one litigant or the other.”' As has been held by the Supreme Court and this court, the principal object in requiring the charge to be reduced to writing, and read to the jury as written, and then filed with the clerk of the court, is to prevent disputes between the judge and counsel as to what was the charge. Now, for the judge to tell the jury that if they wished they could recommend the defendant to the mercy of the court, but that such recommendation would not be binding-upon
3. There are some other errors assigned, but the two above noted are those principally insisted upon, and all of them are, in our opinion, without any substantial merit. The only question in the case was whether or not the language admitted to have been used by the defendant was used by him in the presence of a female without provocation; and this, as above stated, was exclusively a question for the jury. Judgment affirmed.