Strickland v. State , 98 Ga. 84 ( 1896 )

Atkinson, Justice.

1. The request to charge, upon the refusal of wMch error was assigned, was defective for two reasons: It left entirely out of consideration the question as to whether or not the assault was lawful. Whatever may have been the relative difference in size, if the smaller person offer to the larger such an insult as justifies a battery, and a battery not •disproportioned to the offense given be committed, the person assailed cannot justify upon such provocation the use of a deadly weapon, nor can the person assailed under any circumstances justifiably resent a blow by stabbing. Stabbing may, under .some circumstances, be' justified as a measure of prevention, but never as a measure of resentment. It may be justified when done to prevent ■the infliction of a present impending injury amounting to a felony, but cannot be justified when committed in a spirit of resentment for past injuries. If done in heat of blood upon such provocation as would reduce the grade of his offense to manslaughter in the event death had ensued, it •might palliate the degree of the stabber’s guilt and reduce his offense to a misdemeanor, but he could, not lawfully be justified. But even if such a thing were legally possible,it would be a question of fact for the jury to say whether or not the accused could, under all the circumstances proved before them, “justifiably resent” the assault described in the request by stabbing his assailant with a knife; and the charge was properly refused, not only because its effect Would have been to give to the jury erroneous instructions as to the law, but because it invited an invasion of the province of the jury by the expression of an opinion upon the • evidence.

2. We are of the opinion, however, that in view of the •evidence submitted, the court should have given to the jury instructions embodying at least some reference to the inequality between the relative sizes of the two combatants. The evidence showed that the accused was scarcely half so large a man in physical stature as the person stabbed; that in addition to this, he was weak and feeble of frame and greatly emaciated by disease, Avhile, on the contrary, his assailant was a man of splendid physique and very much his superior in point of ability to fight. It is not difficult to imagine how, under such circumstances, the feebler man. might, in order to protect himself against having the life crushed out of him by tire superior force of his adversary, justifiably resort to the use of a weapon for his defense, and this is true even though he might have given the first provocation. For while the first provocation might be sufficient to excuse a moderate beating, if the battery proved, extend so far beyond the provocation as either to amount, to a felony or to endanger the life of the person beaten, it-would itself then become unlawful, and the person upon, whom it was being inflicted might be justified in using even, a deadly weapon in resistance. This seems to have been the theory of the defense as it is outlined in the record, and it is difficult to understand how the court could have proceeded with its instructions, without referring to the disparity in the sizes of the two men. While the instruction ashed was not technically accurate, and was therefore properly refused, the defense set up was so involved in the - case made by the evidence as that an omission to charge-upon it was equivalent to not instructing the jury at all upon one of the leading features of the case. With or without request, the court should charge the jury upon the general features of the law which control the substantial issues’ made, but if the matter be merely collateral, or more specific instructions be desired upon a subject covered by the. general charge, such instructions should be requested. As. was said by Chief Justice Jackson, speaking for the court in the case of the Central Railroad v. Harris, 76 Ga. 510: “The verdict can never be a legal verdict unless instructions on the law of the case be given by him who presides for that purpose. The omission to cover the case substantially must always set it aside.” See also, to the same effect, the cases-there cited.

We have carefully read the general charge of the court which comes up in the record, and we find no reference to-the subject indicated; and hence we are of the opinion that the judgment should be reversed and a new trial awarded.

Judgment reversed.