Mitchell v. The State Of Ga.

• Decision Date: 31 January 1871
• Parties: S. H. MITCHELL, plaintiff in error. v. THE STATE OF GEORGIA, defendant in error.
• Court: Georgia Supreme Court

41 Ga. 527

S. H. MITCHELL, plaintiff in error. v. THE STATE OF GEORGIA, defendant in error.

Supreme Court of the State of Georgia

(Atlanta, January Term, 1871.)

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Criminal Law. Opprobrious Words. Before Judge Clark. Sumter Superior Court. October Adjourned Term, 1870.

The indictment charged Mitchell with assaulting Charles W. Hancock, on the 25th of October, 1870, with a stick, unlawfully beating him therewith, with intent to murder him. On the 17th of November, 1870, Mitchell moved to continue the cause because of the public excitement against him, which had been kept up by the fact that he was Chief Marshal of Americus, and a heated contest for city officers was on the 25th of October, 1870, and ever since, going on, Hancock being an editor of a paper in said city, and had kept this matter before the public. The motion was overruled.

Hancock testified that on the 25th of October, 1870, as he was going to his office, upon the side-walk, he was stopped by Mitchell and asked why he had called Mitchell a dishonest man. Hancock said he had not done so. Mitchell replied that he had, and asked him what he meant by the article in his paper of that day. Hancock replied that there was nothing in the article reflecting upon him as a man or officer; that the article was intended for the public good, and was general in its application. Mitchell said "You meant that Iam a dishonest man." Hancock replied, "I meant no such thing." *Mitchell, raising his finger to Hancock\'s face, said, "The next time you put my name in your paper, by God! I will kill you." Hancock made no reply, but started off. As he turned round, Mitchell struck him heavily with a large stick on the top of his head, and followed it with other blows in quick succession. Hancock fell; Mitchell continued beating him, when some one stopped him, and Hancock left and had his wounds dressed. Hancock had a walking cane in his hand. He denied saying to Mitchell that he was, as a man, responsible for the article. Here the State rested the case.

A man who witnessed the rencontre, testified that Hancock asked Mitchell if his name were in the paper, and he said no, but that he was referred to, because none but he, in the city, had a son in a bar-room; that Hancock said he put the article in as a man, when Mitchell replied that if he did the like again, meddling with his affairs, he would kill him, and shook his finger in Hancock's face. At this juncture, Hancock stepped back (one foot behind the other) and ran his hand into his pocket, and Mitchell grabbed Hancock's right hand with his left, took his stick from his arm with his right hand and struck Hancock. Hancock threw up his left hand, Mitchell caught his collar with his left hand and struck him several Hows, when Hancock, backing, fell over a pile of lumber. Mitchell retained his hold, and struck him two blows while he was down, Hancock crying for mercy. Mitchell's stick was caught and he was pulled away by some one while he was beating Hancock. Hancock drew no weapon, and did not offer to fight.

Two other witnesses gave substantially the same account of the rencontre, stating that Mitchell had just read the last article and had gone out on the street and had the crooked-headed stick which he usually carried, and with that struck the blows. The articles published were as follows: "Two young chaps in town, clerks in rival whisky shops, got into a difficulty yesterday and one was dangerously cut with a knife, on the back of the hand and neck, by the other. Parents should not degrade their sons by forcing them intosuch a business, and it is on them, and not on the boys that this *difficulty should be placed. No father, who desires his son to become a respectable and honest man, will allow him to visit a grog-shop, much less force him to clerk in one against his own wishes. There are honorable employments enough in the land for all to make a good living, and which will not injure the character, though they may harden the hands, that men of judgment had prudence would prefer their sons to work at."

That of the 25th was as follows: "Not to be intimidated in giving publicity to events that transpire in the city, we do so with no intention to cause any one mortification or to in-jure their business, but as journalists, recording the doings of those around us. But the threats of those who style themselves as bullies, will not deter us from noticing anything calculated to injure the morals of the young men of this city. We regard it in the light of a holy cause to cry down and rid our city of evil and crime; and to do this we must strike at the root and work at it until we can get every good man in the city to join in and help us. And as we know that the most of our citizens have the good of the young at heart, we expect to have all on our side ere long. Truth is terrible in some things, and when it touches the heart of the guilty it is more terrible still. And we will even say that the father must not expect his boy, raised in a grog-shop, to fill an honorable position in manhood. There is not one chance in a thousand for him."

Other witnesses testified to the following facts: One Addison kept a grog-shop, and had his son as clerk. One Chapman kept another close by, and Mitchell's son, about nineteen years old, was Chapman's clerk therein. Young Mitchell, not noticing that his knife was open, playfully threw it at Young Addison, and accidentally cut him, they being friendly. After this the first article appeared. Old Addison called on Hancock for an explanation, and Hancock said he meant Mitchell. Addison told his son what Hancock had said; they told young Mitchell and he told his father.

In rebuttal, it was shown that before meeting Hancock, Mitchell was cursing and denouncing him as a pusillanimous *scoundrel and scamp, and saying he had been abusing him all the year, and that if Hancock did not take back what he had said some blows might pass, that he must take it back. They said one of said wounds cut Hancock's scalp about two inches, though none of the wounds were dangerous: that Hancock was unarmed at the time and offered no resistance to Mitchell.

Mitchell made his statement of the affair, but it does not materially change the facts, and, under the statute, is not evidence for him.

When the jury was empanelled and before any evidence was introduced, it being near night, the Judge asked counsel, in the hearing of the jury, if they would consent to the dispersion of the jury, without its being in charge of an officer, and counsel for both sides consented. The Judge then told the jury not to converse with each other about the case nor with others, nor allow others to converse with them about it, and then discharged them for the night. This was all repeated next day at dinner time, while the case was in progress, and that evening, after the argument and charge of the Court were ended. The Court charged the jury as to what was necessary to constitute an assault with intent to murder, of which no complaint is made. He gave in charge the statute as to opprobrious words and said "the law allows thismuch to the passions of men, but the battery must follow quickly the words spoken or the language used; if time has intervened, sufficient for the passions to cool and for reason to assert its sway, the law will not justify a battery, no matter how opprobrious the words or language used; the law will not allow or justify a battery on Monday for words spoken or published on Saturday, nor for words spoken or printed on Wednesday, if there had been time between the reading of them and the assault, for the passions to cool; nor will the law justify a battery in any case for words written, printed or spoken, unless the words are opprobrious or insulting; nor will the law justify a battery for words spoken or written at several different times during the year. If the beating was excessive and beyond the provocation, the law will not justify it even *when the words spoken or written were opprobrious and insulting. If the beating was with a heavy stick and excessive, beyond the provocation, it will be your duty to find defendant guilty of assault and battery."

If Mitchell, in a threatening manner, said to Hancock, "G—d d—n you! if you put my name in your paper again, I'll kill you, " and Hancock retreated and put his hand in his pocket, the putting the hand into his pocket did not justify the beating. Mitchell would have been justified in striking only when Hancock endeavored to draw a weapon or made pretense of drawing a weapon; but if he struck before any effort or show of drawing a weapon had taken...