Folds v. State

Broyles, P. J. The first beadnote alone needs elaboration. In our opinion the court did not err in charging, in substance, that if the defendant first used opprobrious words to the prosecutor, thereby causing the prosecutor to reply with opprobrious words, then the defendant would not be justified in striking the prosecutor on account of the latter’s use of opprobrious words. This ruling is not in conflict with the decision in Arnold v. State, 46 Ga. 456, cited by counsel for the plaintiff in error. In that case it was merely held that it was not error for the court to charge the jury that “if they believed, from the evidence, that the defendant used the first insulting and opprobrious words, they might take that into consideration in determining whether the defendant was justified in making the alleged assault.” It is obvious that the plaintiff in error in that case could not complain of the charge given; and that was substantially all the court decided. It does not follow that the judgment of the trial court would have been . reversed if the charge had not been given: Nor is our ruling in conflict with the decision in Reid v. State, 71 Ga. 865, or with that in Sutton v. State, 2 Ga. App. 659 (58 S. E. 1108). In the Reid case the third headnote is as follows: “If one makes use of [148] opprobrious epithets, and another replies with other opprobrious words, the former will not be justified in striking the latter for the use of language provoked by his own similar language.” (Italics ours). An examination of the original record in the Reid case, on file in the office of the clerk of tlm Supremo Court, shows that the charge of the judge which was excepted to, and which was approved by the Supreme Court, was as follows: “If defendant first used abusive language to Canafax [the prosecutor], and caused Canafax to reply with abusive language or opprobrious yrords, then defendant would have no right to strike Canafax for the use of such language”. It swill be observed that the charge just quoted is substantially like the charge excepted to in the instant case. The record in the Reid case shows also that the opprobrious words used by the prosecutor and the defendant respectively were not “similar” in the sense that they were equal in severity and abuse, but that they were similar in their general character and in belonging to a particular class of words, viz. opprobrious words; and, in our opinion, the Supreme Court used the word “similar” in the latter sense. In the Button case, supra, this court held, in the second paragraph of the decision, that “the aggressor in the use of opprobrious words can not set up, as a defense to a violent battery with a pistol, the use of similar words provoked by his own language.” An examination of the original record in that case shows the same 'state of facts substantially as disclosed by the record in the Reid case, and this court must have used the word “similar” in the sense in which it was used by the Supreme Court. At all events, the charge approved by the Supreme Court in the Reid case, just mentioned, is substantially the charge complained of in the case at bar. It follows that the charge under review was not erroneous in this respect; nor was it erroneous for jany other reason assigned. Judgment affirmed. Bloodworth, J., concurs. Stephens, J., dissents.