Mitchell v. State

41 Ga. 527 | Ga. | 1871

EOCHRANE, C. J.

The record in this case shows that the plaintiff in error was: indicted for an assault with intent to kill, that he moved to> continue the case upon the ground of public excitement against him, which was overruled, and the evidence introduced. During the progress of the trial the Judge asked counsel, in the presence of the jury, if they would consent to the jury dispersing. This inquiry was made twice and assented to, the jury separating; and the last time prisoner’s counsel objected, and the Court did not allow the separation. After the charge of the Court the jury found a verdict of guilty of assault and battery.

Error is assigned on the overruling a motion for a cpn-, tinuance, upon the Court’s inquiry relative to the consent of the jury dispersing, upon the refusal of the Judge to charge as appears by request of prisoner’s counsel, upon the charge given by the Court, and upon the Judge’s refusal of a new trial on the ground that the jury found contrary to the law, evidence, weight of evidence, and without evidence, and against the charge of the Court.

In presenting the judgment of the Court in this case, we *shall follow the assignment of errors, briefly disposing of them in their order.

1. This Court has laid down the rule relative to continuances upon the ground of public excitement. And we do not believe that there is anything in this case that justified the Court in changing the practice now established. Our jury system is peculiarly free from the apprehension of unjust prejudice or passion controlling the judgment of juries empanelled. The statutory questions, as well as general' principles of law, prohibit any inimical influence to- the party accused passing the searching review of the 'Court; opinions entertained or expressed, as well as bias or prejudice, are scrutinized, and we do not see that excitement, outside the Court-house, can well reach the counsels of those entrusted to try the case. It is true that crimes which shock and startle the peace of society, may invoke, in every community, an upheaval of popular indignation. It is natural they should. But. with the, precautions the law has made in selecting jurors, we cannot hold that prisoners shall be entitled, from the very enormity of their acts, to wait a change of public sentiment before they are held to answer.

2. In the matter of the Court asking the prisoner’s counsel if they would consent to a separation in the presence of the jury, we can realize the injustice in the manner of the request, but considering the law as laid down by this Court, 10 Georgia, 511, we do not think, no matter .how much we may feel disinclined to sanction the practice, that it is an error of law upon the part of the Judge to make the inquiry, or if consented to and there is no charge of unjust interference with the jury, that the act constitutes a ground for a new trial. The proper rule is, that the Court is called upon simply to administer the law, and he ought to confine himself to the naked discharge of his official duty. In cases when application is made by counsel on both sides to permit the jury to disperse, he has the right, in his discretion, to grant it; and in ordinary cases there would be no injustice to the State or accused in doing so. But we can readily conceive cases where the Judge, even in lighter grades of offense, should not expose *the jury, after they are charged with the consideration of the case, to disperse; for intermingling with the crowd is, to say the least, an opportunity, if not an invitation to covert attack upon the purity of their verdict. It is a practice this Court has always discouraged by its counsel, where even consent to it has deprived the Court of setting aside the verdict.

3. The next question arises upon the refusal of the Court below to charge that saying, “I put the publication in the paper as a man, arid am responsible for it,” amounts to the same thing as if the words had been there repeated. The assault and battery in this case originated in relation to certain publications which appeared in the Sumter Republican, a newspaper published at Americus, upon Mr. Hancock the editor. And the charge under review, which was refused by the Judge, was based upon that section of our Code which declares : “On the trial of any indictment for an assault or an assault and battery, the defendant may give in evidence to the jury any opprobrious words or abusive language used by the prosecutor; and such words and language may or may not amount to a justification, according to the, nature and extent of the battery, all of which shall be determined by the jury.” This charge could only have been given by the Judge upon the basis of ■ the presumption on which the request is predicated; to-wit: that the saying, “I put the publication in the paper,” etc., was in effect a repetition of the words to the •party, so as to come within the provisions of the Code just recited. In our judgment the charge was properly refused. It was objectionable as requiring the Judge- to' state as a fact proven what was a matter of denial in this case, and besides, it went further and invoked the Court to hold, by such charge, that the words amounted in law to the same thing as if then and there uttered in the presence of the accused.

The provisions of the law on this subject are somewhat peculiar, and we have considered the question closely to catch the spirit and intent of the legislation, and feel satisfied that the statute means only such cases where the opprobrious words are spoken to the party, which in their nature *and manner of utterance, are supposed to arouse the passions, and justify (under certain circumstances to be adjudged by the jury) instant and appropriate resentment, not disproportioned to the provocation.

We realize the necessity of the inquiry by matters being published, thus scattering it wide-cast through the community. But to authorize such publications to be regarded as sufficient provocation to authorize the injured party to take the -law of redress in. his own hand, and to place them on the same footing with opprobrious words spoken in the presence of the party, and justifying an assault and battery under the Code, would be to license crime and uproot the settled principles of public justice.'

In relation to the charge given, we see no error in the construction given to the section of the Code 4597, nor in that portion of his charge relative to what' transpired at the time of the beating. It appears that Mitchell, the plaintiff in error, had a son in a bar and restaurant. The articles considered offense indulged in strictures on the character of the employment. No names were mentioned, but facts as well as proof in this case, pointed what was said to Mitchell. The second article about which this difficulty arose more particularly, appears to have been written with a general intent, and disclaimed personal reference. The articles proved are, in the main, homilies upon temperance and the evils of early training in bar-rooms, and did not, in our opinion amount to opprobrious words dr anything analogous thereto.

4. After the publication of the second article Mitchell met Hancock. Mitchell’s language was significant of the highest degree of anger. Hancock was peculiarly mild, Mitchell lifted his finger towards Hancock’s face. Hancock stepped back, putting his hand in his pocket Mitchell took hold of his wrist and struck him over the head with a stick some heavy blows. He either fell from their effect or stumbled over some wood and fell, and, when down, Mitchell still beat him, and all the while he was imploring mercy. We. find nothing said or done by Hancock at the time to envoke such unnecessary and unmerciful beating, and the Judge’s charge, *“that Mitchell would have been justified only when Hancock endeavored to draw a weapon or make pretence of drawing one, but if he struck before any effort or show of drawing a weapon had taken place, and struck because he put his hand in his pocket, he is guilty of assault and battery,” is, in our judgment, a correct presentation of the law of the case. And we lay the law down on this subject broadly, that when a man goes to another to assail him or demand explanations, or in anger, and the party puts his hand in his pocket, it is an unauthorized presumption that he has a concealed weapon that he is about to draw and use. Men must depend on something more substantial, even in appearance, than this without the existence of threats proven in such case. There must be some definite act, some apparent preparation to draw, something showing the party has in fact a weapon, something more than imagination or bare fear to justify or palliate the commission of acts of violence on the person. Taws were made to protect good men and punish bad ones, and such is the construction Courts will give them.

The error alleged is predicated upon the principle of the law of self-defense which embraces acts tending to excite the fears of a reasonable man, etc. We do not think that, under the law or the facts of this case, the charge of the Judge went further than was proper. The pretext of taking life under reasonable fears has been refined to a subtlety of sentiment not contemplated by the law, and with which this Court has no sympathy. The verdict of the jury in this case could have been under the law and facts only what it is.

In conclusion, we may remark: The press in its general guarantees of freedom should rise to the dignity of its high duty, neither unjustly praising its favorites or abusing its opponents, and while in the exercise of its prerogatives the law puts no limits, it can repress its abuse. The citizen assailed in its columns is not authorized to take the law into his own hands and violate the rights of society by. disturbing the public peace. He is only remitted to the processes of suit or prosecution, and must look to the Courts for redress of wrongs. And the plaintiff in error in this case, if he had ^invoked the law, . and any articlés defamatory of his character had, in fact, been published, would have found that the Courts were open and the law was ample.

Tet the judgment of the Court below be affirmed.