Hodgkins v. State

• Decision Date: 01 August 1892
• Citation: 15 S.E. 695,89 Ga. 761
• Parties: Hodgkins v. State.
• Court: Georgia Supreme Court

15 S.E. 695

89 Ga. 761

Hodgkins

v.State.

Supreme Court of Georgia.

Aug. 1, 1892.

Assault and Battery—Justification—Instructions — Remarks of Counsel — Evidence — Character of Prosecutor.

1. Although witnesses may state they do not know that they are acquainted with the general character of the prosecutor, yet, if they state they have been acquainted with him for a long time, or for a given number of years, and that they have never heard any one speak ill of him, those facts show substantially that they did know his general character sufficiently to qualify them to swear that they would believe him on oath in a court of justice.

2. Counsel, in reply to a criticism by opposing counsel, has no right to state facts by way of explanation of his own conduct disclosed by the evidence, such explanatory facts not being any part of the evidence, but resting alone upon the bare statement which he proposes to make.

3. The court in charging the jury is not bound, at the request of counsel, to direct their attention specially to a particular fact, among a great number of facts of which the evidence consists.

4. Whether opprobrious words will justify a battery is a question of fact for the jury, and not one of law to be determined by the court, the jury in each case being authorized to treat such words as a justification or not, according to the nature and extent of the battery, and their own opinion of the provocation. Hence it is not error for the court to decline to charge that "opprobrious words is a justification for the commission of an assault and battery, provided the battery does not go too far."

5. Where the judge states in his charge to the jury that only one justification, specifying it, is set up by the defendant, this will be taken as true in the supreme court, unless the contrary affirmatively appears by something which the judge certifies to. For counsel to state argumentatively in the motion for a new trial, or in the bill of exceptions, that it was not true, will amount to no contradiction of the statement in the charge. Brick Co. v. Sullivan, 12 S. E. Rep. 216, 86 Ga. 60! Brantly v. Huff, 62 Ga. 532. What is sought to be verified by the judge's certificate should be stated by way of narrative, and not of argument.

6. There was no substantial error in the charge of the court touching the impeachment of witnesses, " and sustaining them when attacked, nor touching the right of the jury to believe the evidence, nor touching the justification of an assault and battery by opprobrious words, nor touching the subject of reasonable doubt.

7. The evidence warranted the verdict, the penalty was not excessive, and there was no error in denying a new trial.

(Syllabus by the Court.)

Error from city court of Macon; John P. Boss, Judge.

E. T. Hodgkins w, as convicted of an assault and battery, and excepts to the sentence imposed and to the order overruling his motion for a new trial. Affirmed.

The following is the substance of the official report:

The sentence was four months' confinement in the common jail, which might be relieved by the payment of a fine of $200 and costs. The grounds for new trial, in addition to the general grounds, are as follows:

(1) The main witness for the defendant was one Kahn, who testified, on cross-examination, that he made an affidavit in this case for the defendant's counsel some months ago, when the warrant was first sworn out; made it because the counsel asked him forit, saying that he might need it some time when witness was absent. During his concluding argument the solicitor general was discussing Kahn's testimony, and said, "Was it, gentlemen of the jury, for the purpose of menacing this witness that counsel took the affidavit?" The defendant's counsel objected, stating that such argument was unauthorized by the evidence, and asked to be allowed to explain to the court and jury why he had taken the affidavit referred to. The court stated that the defendant's counsel might interrupt the solicitor and correct him whenever the solicitor misstated counsel's positions as to the law and the case, or quoted the evidence contrary to counsel's recollection of it, but refused to allow the counsel to make any statement as to reasons for taking the affidavit. The court also said to the jury, " Defendant is represented by able and distinguished counsel, and, doubtless, gentlemen of tire jury, be knew what he was doing." The defendant says that this was error, because the argument of the solicitor was unauthorized by the evidence, and tended to prejudice the jury against the defendant and his counsel, and to discredit Kahn, who had not been impeached; and because the counsel had the right to explain why he had taken the affidavit, in order to remove from the minds of the jury any prejudice which had lodged there by the unauthorized statement of the solicitor.

(2) The testimony shows that the defendant is a white man, and that the prosecutor, Hester, the person alleged to have been assaulted and beaten, is a negro. There was some effort to impeach the prosecutor as a witness, and in rebuttal the state introduced Morgan, Burr, and Powers, each of whom testified that they had known Hester for several years. Morgan was asked, "Do you know his general character for truth and veracity?" and in reply he asked, " What do you mean by general character?" This was repeated three-times, and then the court explained to the witness what was meant, and the witness replied, "So far as I know, his character is good. I have never heardanybody speak ill of him. I would believe him on his oath." Burr made the Same answer, the court at his request having explained the meaning of general character. Powers stated: "He worked for me a longtime. Don't know that I know his general character. Have never heard any one speak HI of him, and would believe him on oath."...