Haygood v. State

• Decision Date: 12 December 1911
• Citation: 187 Ga. 168,73 S.E. 81
• Parties: HAYGOOD. v. STATE.
• Court: Georgia Supreme Court

73 S.E. 81

(187 Ga. 168)

HAYGOOD.

v.STATE.

Supreme Court of Georgia.

Dec. 12, 1911.

(Syllabus by the Court.)

1. Assault and Battery (§ 66^*)—Justification—Abusive Language.

Opprobrious words or abusive language, which may, under the provisions of the Code of this state (Pen. Code 1910, § 103), be given in evidence as a justification for an assault, or an assault and battery, are such as are used by the person assaulted or beaten, at the time of the assault, or assault and battery.

[Ed. Note.—For other cases, see Assault and Battery, Cent. Dig. § 95; Dec. Dig. § 66.*]

2. Justification of Assault.

Upon review of the decisions in Mitchell v. State, 41 Ga. 527, and Berry v. State, 105 Ga. 683, 31 S. E. 592, this court declines to overrule them, as to the point above decided.

Certified Question from Court of Appeals.

J. W. Haygood was convicted of an assault, and brings error. Questions certified from the Court of Appeals. Questions answered.

The Court of Appeals certified to the Supreme Court the following question: "In a prosecution for assault and battery, can the accused give in evidence, as a justification of the alleged assault and battery, opprobrious or abusive language written and published of him by the person upon whom he made the alleged assault and battery? In this connection counsel for the plaintiff in error requests the Court of Appeals to call the attention of the Supreme Court to the cases of Mitchell v. State, 41 Ga. 527, and Berry v. State, 105 Ga. 683, 31 S. E. 592, for the purpose of having the decisions in these cases reviewed and overruled."

J. T. Hill, for plaintiff in error.

A. J. McDonald, Sol., for the State.

LUMPKIN, J. The question propounded by the Court of Appeals is concluded by the decisions in Mitchell v. State, 41 Ga. 527, and Berry v. State, 105 Ga. 683, 31 S. E. 592. In the latter case the ruling made in the former was reviewed, but the members of the court were equally divided in opinion as to whether it should be overruled, and so it remained of force, as, under the statute, the concurrence of five Justices was required to overrule a decision made by three Judges prior to the increase in the number of Justices upon the Supreme Bench. The request is again made to review and overrule those decisions. After consideration, we decline to overrule them as to the point now before us. The argument in their favor was clearly stated in the opinion of Mr. Justice Little in the Berry Case.

At common law opprobrious words or abusive language did not justify an assault. The Legislature of this state saw fit to modify the common-law rule to some extent. Section 103 of the Penal Code of 1910 reads as follows: "On the trial of an 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, or person assaulted or beaten; 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." The question before us turns upon the proper construction of the expression that the defendant "may give in evidence to the jury any opprobrious words, or abusive language, used by the prosecutor, or person assaulted or beaten, " upon the trial of an indictment for an assault, or an assault and battery, as matter of justification, to be determined by the jury. When does the statute contemplate that such words must have been used, in order for them to be introduced in evidence as matter of justification? Only two possible constructions can be placed upon it—either...