Buster Price was convicted of the murder of A. E. Massey, and recommended to mercy. He excepts to the overruling of his motion for a new trial.
1, 2. Complaint is made that the court refused ’to allow counsel for the accused additional time to that prescribed by the rule of court for the argument of the case; and that the court allowed counsel who concluded the argument for the State to make an improper reply to the argument of defendant’s counsel. The nature of the complaints and the rulings thereon are sufficiently stated in the first and second headnotes.
3. The homicide occurred at a junction of two railroads. -The decedent arrived on one train and immediately inquired of the station agent concerning a connection on the other road, and was referred to the engineer of the latter road. This occurred shortly before the homicide. Objection was made to this testimony, on
4. Impeachment of a witness by proof of previous contradictory statements involves two propositions, viz.: whether the witness made the alleged contradictory statement, and, if he made the contradictory statement, its effect on his present testimony. The charge complained of was substantially like that criticised in Powell v. State, 101 Ga. 9 (29 S. E. 309, 65 Am. St. R. 277), and was not subject to the criticism that the jury was limited to the determination of the factum of the making of the alleged contradictory statement, nor^that it was. equivalent to a peremptory instruction that if the testimony of the attacking witness is believed, the witness attacked is successfully impeached.
5. The court charged: “In addition to that, gentlemen, I charge you this, that the party who sets up self-defense to justify himself in taking human life, under the law of justifiable homicide, must be without fault at the particular time, and in the particular act. One can not by his own act or conduct create a necessity in another to defend himself, and then justify himself in killing the party who attempts to defend himself against the necessity of the defendant’s own creation. But of course that does not mean that he must be without any fault whatever during the entire transaction, but without fault at the time of the killing.” The evidence authorized an inference thát the accused provoked the difficulty and brought about the emergency which, as he contends, afforded a justification for the .homicide. One cannot create an emergency which renders it necessary for another to defend himself, and then take advantage of the effort of such other person to do so. Pryer v. State, 128 Ga. 28 (57 S. E. 93). This excerpt from the charge is in harmony with this principle of law.
6. Exception is taken to this portion of the court’s charge: “Applying the general principles that the court has given you, the court now charges you this: that if you believe from the evidence in this case beyond a reasonable doubt that the defendant, Buster Price, in
7. In his instruction on the law of voluntary manslaughter the court defined that grade of homicide in the language of Penal Code (1910), § 65. Exception is taken to that.part of the code section which declares 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,” as containing an implication that words and menaces are insufficient to excite the fears of a reasonable man that a felony is intended to be committed on his person, so as to justify a killing. We think this exception is entirely without merit. Surely it cannot be said that it is error to define manslaughter in the words of the statute. It is claimed that the statutory declaration, that provocation by words, threats, menaces, etc., shall not free the slayer from the guilt and crime of murder, militates against the code sections which justify a homicide by one who slays his antagonist under the influence of a reasonable fear that a felony is about to be perpetrated upon his person. The two principles of law are quite distinct. One who slays for no other reason than that he is provoked by words, threats, menaces, or contemptuous gestures of the person slain is guilty of murder.
8. The issues made by the evidence were clearly submitted, and the charge was not open to the criticisms made on it. The evidence authorized the verdict, which has the approval of the trial judge, and no sufficient reason is made to appear for the granting of a new trial.
Judgment affirmed.