Behling v. State

• Citation: 36 S.E. 85,110 Ga. 754
• Parties: BEHLING. v. STATE.
• Decision Date: 11 May 1900
• Court: Georgia Supreme Court

110 Ga. 754

36 S.E. 85

BEHLING.

v.STATE.

Supreme Court of Georgia.

May 11, 1900.

ASSAULT—JUSTIFICATION—OPPROBRIOUS LANGUAGE.

Grimaces or facial expressions of contempt do not constitute "opprobrious words or abusive language, " within the meaning of section 103 of the Penal Code, which declares that "such words and language" may or may not, as shall be determined by the jury, amount to a justification of an assault or an assault and battery.

(Syllabus by the Court.)

Error from superior court, Dekalb county; John S. Candler, Judge.

A. H. Behling was convicted of assault, and brings error. Affirmed.

Green & McKinney, for plaintiff in error.

W. T. Kimsey, Sol. Gen., and J. L. Travis, for the State.

LEWIS, J. The accused was tried upon an indictment by the grand jury of Dekalb county for the offense of assault and battery upon one Lively. The evidence for the prosecution shows that at the time and place alleged in the indictment the accused, while aboard a street car, without provocation, made a violent assault upon Lively, who was also a passenger upon the car, striking and wounding him in the face with an umbrella. No evidence was introduced in behalf of the accused. He made a statement in which he claimed that the difficulty originated on account of angry feelings entertained against him by Lively resulting from a suit that accused had brought against Lively to recover an attorney's fee for services. He stated that three or four times before this difficulty Lively had made grimaces and facial expressions of contempt towards him, and that he finally told him if he did not cease he would get into trouble. On the occasion of the difficulty accused stated that Lively again commenced this conduct by making grimaces, "and then it happened." The accused was found guilty, and excepts to the judgment of the court overruling his motion for a new trial.

On the trial of the case the accused offered to prove by the prosecutor, Lively, that he had, several days before this difficulty, been making towards him facial expressions of contempt for the purpose of insulting him, and exception is taken to the ruling of the court in refusing to allow answers to questions seeking such proof. Another ground of the motion for a new trial complains that the court erred in not charging section 103 of the Penal Code, it being contended by counsel for plaintiff in error that the word "language" in that section not only included words, but also making faces, grimaces, and contemptuous gestures in the presence of the accused, to hold him up to contempt and ridicule. We do not think the language in the section referred to is susceptible of any such legal construction; nor do we think that this section has any application to the facts in this case. The case of Bowie v. Maddox, 29 Ga. 285, is cited by counsel for plaintiff in error for the position that...