Brown v. State , 58 Ga. 212 ( 1877 )

Bleckley, Judge.

1. In making his own statement to the court and jury, the prisoner i's not under examination, and his counsel has no right to ask him questions. Doubtless the court might, at the prisoner’s request, permit questions to be put to him, as matter of discretion.

2. Where, at the time of the homicide, the person slain was making angry demonstrations against the slayer, having him by the coat-collar with one hand, and holding a pound-weight in the other hand, it is error, on the trial of the slayer for murder, to submit to the jury section 4694 of the Code, which relates to justifying an assault, or an assault and battery, by evidence of opprobious words. Though the prisoner provoked the attack by using opprobious words, there should not have been any use or exhibition of the pound-weight, in resistance to mere words, under the circumstances, and the principle of the above section does not fairly apply to the case.

3. Under the evidence in the record, the real question seems to be upon grading the homicide between murder and voluntary manslaughter. The law of involuntary homicide is not involved, nor is the law of circumstantial evidence. Eor this homicide to be justifiable, the jury must believe that the deceased manifestly intended or endeavored to kill the prisoner, and that the danger was so urgent and pressing at the time of the killing,'that in order to save his own life, the killing was absolutely necessary. Or else they must believe that the circumstances were sufficient to excite in the prisoner the fears of a reasonable man that he would then and there be killed, and that he, believing it ■was necessary to kill the other to save his own life, really acted under the influence of those fears, and not in a spirit of revenge.

Judgment reversed.