Opinion
33874.
DECIDED MARCH 8, 1952.
Assault and battery; from Elberton City Court — Judge McLanahan. October 9, 1951.
Stapleton Williford, for plaintiff in error.
Howard B. Payne, Solicitor, contra.
1. While it is well settled that, when a theory of defense rests solely on the statement of the defendant in a criminal trial, it is not reversible error for the trial court to fail, in the absence of appropriate written request, to give such theory in charge to the jury — it is, nevertheless, reversible error to fail to give in charge to the jury a theory of substantial defense which appears from the statement of the defendant and is corroborated by testimony introduced to sustain it, even though such a charge is not requested.
2. Error to be reversible must be harmful to the complaining party. Accordingly, where the effect of a charge is to give the defendant in a criminal trial a defense not authorized by the evidence, such charge is favorable to the defendant and does not constitute reversible error.
DECIDED MARCH 8, 1952.
A. L. Bagley was convicted in the City Court of Elberton of assault and battery. Upon the trial of the case, the undisputed evidence was that the defendant was Chief of Police of the City of Elberton; that on July 28, 1951, the police force received several calls from one Mrs. Gene Ashworth reporting that her husband was drunk and requesting that he be locked up; that on investigation it was found that Mrs. Ashworth was intoxicated; that thereupon the defendant sent for Ashworth for the purpose of talking with him and that Ashworth voluntarily came to the police station; that he and the defendant engaged in a friendly conversation, at the conclusion of which Ashworth was informed that there were no charges against him, but that he should go home and try to get his family difficulties straightened out; that Ashworth then requested that his wife be locked up; that at this point Ashworth's brother-in-law, E. A. Edwards, the prosecuting witness in this case, entered the room and, after an exchange of words, the defendant hit Edwards one time with his fist. The testimony of the defendant's witnesses, and his statement on this point, are as follows:
J. L. Lovinggood: "Chief Bagley was talking to Ashworth at the time, and had already dismissed Ashworth and told him to go on home and straighten out his family affairs. Edwards talked like he was mad when he came into the chief's office. Then Edwards asked what we were locking up Ashworth for, and Chief Bagley told Edwards that no case was being made against Ashworth and that it wasn't any of his business. Mr. Edwards said he reckoned it was some of his goddam business and moved toward Chief Bagley. When he did this Chief Bagley hit him one time."
J. B. Fortson: "As Chief Bagley and Ashworth were talking, Mr. Edwards came in and asked if we had Ashworth, and no one replied at first, so he asked what we were locking Ashworth up for. Chief Bagley said it was none of his damn business, and Edwards replied he reckoned it was some of his damn business and stepped toward Chief Bagley and Chief Bagley hit him."
Defendant: "When Edwards asked why we were locking up Ashworth, I told Edwards that we were not locking up Ashworth, and that it was none of Edwards' damn business. Edwards then said, `I reckon it is some of my goddam business', and he stepped towards me, reaching his hand in his hip pocket. When he did this I hit him with my fist, and I only hit him just hard enough to stop him. . . Edwards did not attempt to tell me who he was or what business he had at the police station, but came in mad and belligerent from the time he stepped in the office."
Following his conviction the defendant filed a motion for a new trial on the general grounds, which was later amended by the addition of one special ground, and the overruling of this motion is assigned as error.
1. When a theory of defense rests solely on the statement of the accused, it is well settled that, in the absence of an appropriate written request to that effect, it is not reversible error to fail to charge such theory to the jury. Richards v. State, 114 Ga. 834 (1) ( 40 S.E. 1001); Evans v. State, 68 Ga. App. 207 (4) ( 22 S.E.2d 618). And where two theories are presented solely by the defendant's statement, the fact that the trial court charges the law relative to one and ignores the other is not error. Smith v. State, 117 Ga. 259 ( 43 S.E. 703). Where, however, the substantial defense upon which the defendant relies, as appears from his statement, is corroborated by evidence introduced to sustain it, it is error for the trial court to fail to call the attention of the jury to that defense, whether so requested or not. Reed v. State, 15 Ga. App. 435 ( 83 S.E. 674). See also Conoly v. State, 10 Ga. App. 822 ( 74 S.E. 285); Parker v. State, 24 Ga. App. 267 ( 100 S.E. 452); Duggan v. State, 3 Ga. App. 332 ( 59 S.E. 846).
In his special ground of the amended motion for a new trial, the defendant contends that the main and only defense upon which he relied was that of self-defense, in that it was his contention that, after the exchange of words between himself and the prosecutor, the latter advanced toward him in a threatening and angry manner with his hand in his pocket, whereupon the defendant — who stated that upon a former occasion when he had not resisted an assailant under like circumstances he had been knifed in the neck — assumed that the prosecutor was preparing to draw a weapon as he advanced on him and for that reason struck him one time. This explanation itself, being contained entirely in the defendant's statement, would not have made it mandatory to charge on self-defense, although it is always the better practice to inform the jury of all pertinent rules of law in order that they may make a just and legal determination of the case, since the jury may, if it wishes, believe the defendant's statement in preference to the sworn testimony of the case. The jury should therefore be informed of the rules of law governing under a situation as presented by the defendant's statement, in case it chooses to believe it. In the instant case, it is contended by the State that the testimony of the defendant's witnesses is not strong enough to warrant its consideration as corroboration of the defendant's statement. Whether or not it is sufficiently positive to place in the minds of the jurors a reasonable doubt as to the defendant's guilt in the absence of any explanation of his actions, we are not called upon to decide, for the defendant offered a well-reasoned explanation of his conduct and all the circumstances of the case indicated that he had never before seen the prosecutor and knew nothing about him, and that he was not angry at the time the prosecutor entered the room, but was engaged in a peaceable conversation with Ashworth. The witness Lovinggood testified that Edwards "moved toward" Bagley, and that Edwards "talked like he was mad when he came into the chief's office." Fortson testified that "Chief Bagley said it was none of his damn business and Edwards replied he reckoned it was some of his damn business, and stepped toward Chief Bagley and Chief Bagley hit him." The corroborative testimony thus includes every physical fact stated by the defendant except the allegation that the prosecutor, when he moved toward him, had his hand in his pocket, and the defendant's statement enlarges upon this only to the extent of interpreting the prosecutor's actions as they appeared to him. Under these circumstances it cannot be said that the theory of the defense as presented by the defendant's statement was without corroboration. It follows, therefore, that the trial judge erred in failing to charge the law as to self-defense, for which reason a new trial must be granted.
2. It is further contended in the brief of counsel, in underlining the error discussed in the previous division of this opinion, that the charge which was given by the court based on Code § 26-1409, relating to the use of opprobrious words or abusive language by the prosecutor as being under certain circumstances justification for an assault, was not a proper charge, in that, under the decision of Folds v. State, 23 Ga. App. 147 ( 97 S.E. 872), if the defendant first used the opprobrious words, it would be no justification that he struck the prosecutor for replying in kind. While the majority opinion in that decision appears to be a statement of the present law on this subject, the writer finds great merit in the dissenting opinion, and feels that the rule is not entirely inflexible, and that, under earlier Supreme Court decisions therein cited, as well as under the provisions of Code § 26-1409, the exchange of opprobrious words between two parties immediately leading to an assault would not under all circumstances bar the defendant from pleading justification. In any event, however, the charge on this subject in the present case was favorable to the accused and would not constitute reversible error.
As the case is to be tried again, the general grounds are not passed upon at this time.
Judgment reversed. Gardner, P. J., and Carlisle, J., concur.