118 Ga. 198 | Ga. | 1903
According to the evidence of the State, half an hour before the homicide there had been an altercation between Robinson,, the defendant, and Murphy, the deceased, when the latter cursed the former forag — d—s— ofab —, drew a knife, and threatened to kill him. Robinson withdrew and went to a house near by, telling those there that he had been cursed and was going to kill Murphy. He procured a rifle and returned; whereupon Murphy, seeing him armed with a rifle, attempted to screen himself behind a companion; but Robinson, finally securing a good aim, fired and killed Murphy. According to the theory of the defense, Murphy went towards the house in search of Robinson, with a drawn knife in his hand. Both parties advanced towards each other for the purpose of renewing the fight, and the 'deceased was shot while in the act of approaching the defendant. In the light of this evi
In every trial for murder the action, intention, and motive of both parties to the affray are proper subjects for consideration by the jury. All the circumstances of the quarrel, including those immediately preceding the killing, are admissible, and the defendant would be entitled to establish all that went to make up the res gestee by every witness by whom the same could be proved; for the jury might be willing to believe one and disbelieve the others. In this instance, however, the use of the opprobrious words was not denied, and was proved by the witnesses for the State, as well as for the accused. The failure, therefore, to allow it to be established in this instance by a particular witness worked no harm, and is not ground for the grant of a new trial.
The court charged that “words, threats, menaces, or contemptuous gestures shall not be sufficient to reduce a killing from murder to manslaughter. There must be an assault or other equivalent circumstances sufficient, in the opinion of the jury, to excite the passion and exclude all idea of deliberation whatever.” The plaintiff in error says that this was not a matter for the court, but for the jury. Where there has been conflicting argument as to the effect of provocation by words, the jury desire, and certainly are entitled, to be instructed as to the statute on that subject. While the words were .admissible as part of the res gestee, they did not afford a justification for the killing, and it was not error for the judge so to inform the jury. The epithets used were very insulting. In anticipation that it might be claimed that while ordinary insults would not be sufficient, yet if they were unusually and outrageously offensive the provocation by words might be sufficient to justify a homicide, the code meets that argument before it is made: in no case shall provocation by words be sufficient to free the person killing from the crime of murder. It goes even further: in no case shall provocation by words be sufficient to free the person killing from the guilt of murder. The section is as emphatic as it is possible for language to be, and in this positive and unequivocal form was enacted by the people’s representatives as
