1. In the trial of one charged with murder, it was not error for the judge, after he had stated the issue and given the definition of murder and of malice, to add, "So that, gentlemen of the jury, if you believe beyond a reasonable doubt that this defendant did with malice aforethought, either express or implied, in the way and manner alleged and described in the bill of indictment, without justification, mitigation, or excuse, kill the deceased, then he is guilty of murder."
2. In such a case it was not erroneous, in giving the following instructions, to omit therefrom what grade of manslaughter was meant, the court in other portions of the charge instructing the jury on the law of voluntary manslaughter: "I charge you, gentlemen of the jury, that under the law a man can not use a weapon likely to produce death, if this instrument that he used was a weapon likely to produce death, and kill a man in resentment of a bare assault or assault and battery on him and be justified of the offense of murder, but he may be guilty of manslaughter if he killed under these circumstances."
3. It was not error, in instructing the jury as to what the law meant by malice, to define express malice as well as implied malice.
4. It is not cause for new trial that in charging as to "cooling time" the judge instructed the jury that, "if there should have been an interval between the assault or provocation given and the homicide — of which the jury in all cases shall be the judges, sufficient for the voice of reason and humanity to be heard, the killing shall be attributed to deliberate revenge and punished as murder;" the complainant presenting the contention that there was no evidence of any interval between the alleged assault and the homicide.
5. One ground of the motion contends that the judge greatly prejudiced the movant's case by charging that "The defendant contends, gentlemen of the jury, that the white man knocked him down, and that he, the defendant, got up and hit him, the white man, with his knife. These are substantially his contentions." This ground is without merit. The record shows that the judge was dealing with what the accused recounted in his statement, referring to the deceased only as "a white fellow."
6. Nor is any error shown in instructing the jury that "Provocation by words, threats, menaces, or contemptuous gestures shall in no case be sufficient to free the person killing from the guilt and crime of murder."
7. It was not error to charge that "This defendant enters into the trial of this case with the presumption of innocence in his favor, and that presumption *Page 469 remains with him throughout the trial and until his guilt is established by the evidence beyond all reasonable doubt."
8. The contention that the court wholly failed to instruct the jury as to the law applicable to the cause as disclosed by the evidence is without merit.
9. It affords no reason for granting a new trial that in charging on the presumption of innocence the court did not instruct the jury that this presumption covered incidents in which the evidence showed that the defendant had participated shortly before the moment of the homicide.
10. It was not erroneous to charge: "You are to say, gentlemen of the jury, from all the evidence in the case, along with the prisoner's statement, where the truth of the case lies."
11. That in the indictment the name of the deceased was given as James Wilson, and in the testimony he was referred to merely as Wilson, or Mr. Wilson, except that his widow as a witness stated that his name was James Henry Wilson, does not present a fatal variance between the allegata and the probata.
12. At the conclusion of the argument, the judge addressed counsel for the accused as follows: Q. "Mr. Ingram, as I understand it you don't claim self-defense?" A. "No, Sir." Q. "But your contentions are, he killed under such circumstances as would make him guilty of manslaughter?" A. "That is correct — Yes, Sir." The court was on that account alone justified in charging the jury as follows: "The defendant contends, gentlemen of the jury, and his lawyer here in your presence, and before you, has stated to you and the court that he does not claim self-defense for his client, but that he did it in such a way and under such circumstances as would make him guilty of manslaughter, and that therefore manslaughter is all that he is guilty of."
13. The jury were authorized under the evidence to find the defendant guilty of murder.
No. 14597. JULY 7, 1943. REHEARING DENIED JULY 19, 1943. The grounds of the motion, which are dealt with seriatim in the headnotes, are without merit; and the propositions thus announced need not be further referred to. The entire charge of the court is in the record. It is full, fair, and accurate. It properly omitted any reference to the law of self-defense, in view of the candid statement of counsel for the accused. Steed v. State, 123 Ga. 569 (51 S.E. 627);Caesar v. State, 127 Ga. 710 (57 S.E. 66); Threlkeld v.State, 128 Ga. 660 (58 S.E. 49); Brown v. State,150 Ga. 756 (105 S.E. 289); Minter v. State, 158 Ga. 137 (123 S.E. 297); Riggins v. State, 169 Ga. 583 (151 S.E. 15). *Page 470 Such a statement from able and experienced counsel not only did credit to the sense of duty which he owed to the court, as well as to his own enlightened conscience, but to his knowledge of the law as well; for under none of the evidence, or even the prisoner's statement, could it be said that the homicide was justifiable. The prisoner's account of the killing, although in material respects more favorable to him than that given by the testimony hereinafter referred to, was as follows: "Me and a boy named Chick Buddy was down there at the Two-State Cafe, arguing about money, and me and him was in there arguing, and Sis told me to go outside. I come on outside, me and a boy named Franklin, and was walking up there by the barber-shop, and this white lady and a white fellow come by, and he said, `Mind how you cussing,' and I said, `If I am cussing I done hushed.' I went to walk off, and this fellow grabbed me and knocked me down. I just gets up and hit him with the knife, and walked on off."
While there may be some slight conflicts in the evidence, the jury were fully authorized to find the following to be the truth of the case: The accused was in a restaurant, drunk and cursing, with an open knife in his hand. The proprietress ordered him out, and he left in company with another man. The two were standing on the outside "talking awful stuff." Wilson and his wife, after having left a church service and a brief visit to a relative, stopped by a cafe on their way home. As they left the place and were passing by the accused and his companion, Wilson asked the accused to hush. The accused continued to "cuss." Wilson again asked him to desist until he could get his wife by. He did not hush, but used vulgar and obscene language which is unfit to print. The words were of a most obscene character. As was observed in Chaplinsky v. New Hampshire, 315 U.S. 568, 573 (62 Sup. Ct. 766, 86 L. ed. 1031): "The English language has a number of words and expressions which by general consent are `fighting words,' when said without a disarming smile. . . Such words, as ordinary men know, are likely to cause a fight. So are threatening, profane, or obscene revilings." When the language just referred to was uttered, immediately (as one witness put it) Wilson "kinder shoved him and was fixing to hit him, and when he did [the accused] raised his hand that way," and in a moment or so Wilson was seen to fall. Another witness, after detailing about his presence in the restaurant *Page 471 where he had pulled his knife on Chick Buddy, said: "He then walked up the street a little piece, and he stopped. I seed him after he walked out of the cafe. He walked out the cafe, and he walked up the street a little piece and stopped, and was there cussing, and a man was passing by with his wife, and he told him to mind his word, and he kept cussing, and the man again asked him, and he never would stop, and the man slapped at him, and Eddie knocked his [Wilson's] hand up; he [Eddie] stabbed him with the knife." Wilson, who was a crippled man weighing 112 pounds, died from the stab. The evidence fully authorized the jury to find the accused guilty of murder, and as a whole it did not demand that the grade of the homicide be reduced to voluntary manslaughter.
There is no obligation which a lawyer owes to his client which would justify him in trifling with the court; none which makes it his duty to urge a proposition of law which he knows to be unsound. One of the special duties of attorneys is "never to seek to mislead the judges or juries by any artifice or false statement of the law." Code, § 9-601. They are officers of court, priests in the temple of justice, whose high mission is to assist in the administration of justice under the law. The same considerations which should restrain them from obstructing it by filing motions for new trial when there is no reason for supposing that a new trial will be granted, or to indulge in other dilatory tactics for the sole purpose of delaying the administration of justice (Fambles v. State, 97 Ga. 625,629, 25 S.E. 365), make it commendable in counsel to assist the judge in clarifying and simplifying the issues which should be submitted to the jury. A study of this record convinces us that he gave away no right of his client, nor did any injury to his cause in frankly stating to the court that he did not take the position that the defense of justifiable homicide was involved. In Lingo v. State, 29 Ga. 470, may be found the statement that that which is perfectly justifiable on the part of the deceased can not be any legal provocation to the slayer. SeeMathews v. State, 125 Ga. 50 (54 S.E. 196). In McMillan v. State, 35 Ga. 54, 59, this court said: "But even if there had been an assault shown, was the assault such as to free the defendant from the crime of murder? Roscoe's Cr. Ev. 726, says: `Although, under circumstances, an assault by the deceased upon the prisoner may be sufficient to rebut the general presumption of malice arising from the killing, yet it must not be *Page 472 understood that every trivial provocation which, in point of law, amounts to an assault, or even a blow, will, as a matter of course, reduce the crime to manslaughter. For when the punishment inflicted for a slight transgression of any sort is outrageous in its nature, either in the manner or continuance of it, and beyond all proportion to the offense, it is rather to be considered as the effect of a diabolical malignity than a human frailty, and is one of the symptoms of that which the law denominates malice, and the crime will amount to murder, notwithstanding such provocation.' `Barbarity,' says Lord Holt (Keat's Case, Comb. 408), `will often make malice.' 1 East. P. C. 234; 1 Russ. by Grea. 515 (1). If, without adequate provocation, a person strikes another with a deadly weapon likely to produce death, although he had no previous malice against the party, yet he is to be presumed to have had such malice at the moment, from the circumstances, and he is guilty of murder.' 1 Rus. on Cr. 514."
In Thompson v. State, 55 Ga. 47, it was ruled: "Where opprobrious words were used by the defendant to the deceased, and the latter struck him with a small walking-stick, the blow could not be considered as such considerable provocation as would rebut the presumption of malice on the part of the defendant in killing the deceased, provided the battery was not disproportioned to the insult offered." See Hanye v. State, 99 Ga. 212 (25 S.E. 307); Slocumb v. State, 157 Ga. 131 (7) (121 S.E. 116). This court once more rules that in order to convict one of murder it is not necessary to make it expressly appear that the slayer had a motive, or to show threats or ill will, or that the act was done to avenge a past wrong, real or imaginary; but on the contrary, that while malice is a necessary ingredient of murder, express malice is not; and (Code, § 26-1004) "Malice shall be implied where no considerable provocation appears, and where all the circumstances of the killing show an abandoned and malignant heart." The law does not declare that malice shall be implied only when no provocation appears. The phrase is, "where no considerable provocation appears." The grade of an unlawful killing of a human being is that of murder if it be done with malice, either express or implied. "Though some other courts lay down a different rule, it is now a well established rule in this State, that, where a killing of a human being is proved and the evidence adduced to establish the killing does not show circumstances *Page 473 of justification or alleviation, malice will be inferred."Green v. State, 124 Ga. 343, 347-8 (52 S.E. 431).
Nor is the verdict wrong for the reason that, although the indictment charges that James Wilson was murdered, the person killed was referred to in the testimony as James Henry Wilson, or merely "Mr. Wilson." It was not shown that there were two James Wilsons. The law does not regard the middle name or initial of a person as material unless it be shown that there are two persons of the same first name and surname. Hicks v. Riley, 83 Ga. 332 (9 S.E. 771). See Timberlake v. State, 100 Ga. 66 (27 S.E. 158); Eaves v. State, 113 Ga. 749 (39 S.E. 318);Veal v. State, 116 Ga. 589 (42 S.E. 705).
The verdict was supported by the evidence, and it was not erroneous to refuse a new trial.
Judgment affirmed. All the Justices concur.