O.C.G.A. § 16-5-25 (2019)

Annotations

JUDICIAL DECISIONS Opprobrious words are not absolute defense to charge of assault and battery; much less would they be an absolute defense to a charge of contempt of court by acts occurring in the presence of the trial judge in the courtroom during the progress of a trial. Cohran v. Sosebee, 120 Ga. App. 115, 169 S.E.2d 624 (1969). Past opprobrious words may never serve as a justification for assault and battery. Cawley v. State, 74 Ga. App. 214, 39 S.E.2d 427 (1946); Ailstock v. State, 159 Ga. App. 482, 283 S.E.2d 698 (1981). Opprobrious words must by nature arouse passions and be said in assaulting party’s presence. Opprobrious words which justify an assault and battery must be such as are uttered in the presence of the assaulting party and which, in their nature, are supposed to arouse the passions, and justify, under certain circumstances to be adjudged by the jury, instant

and appropriate resentment, not disproportioned to the provocation. Berry v. State, 105 Ga. 683, 31 S.E. 592 (1898); Cowart v. State, 9 Ga. App. 169, 70 S.E. 891 (1911); Haygood v. State, 137 Ga. 168, 73 S.E. 81 (1911); Robinson v. De Vaughn, 59 Ga. App. 37, 200 S.E. 213 (1938). Grimaces or facial expressions do not constitute such words. Behling v. State, 110 Ga. 754, 36 S.E. 85 (1900). Threats are not necessarily opprobrious. Kimberly v. State, 4 Ga. App. 852, 62 S.E. 571 (1908). Insulting language used by child of nine years does not furnish adult justification for assault and battery. McKinley v. State, 121 Ga. 193, 48 S.E. 917 (1904). Exchange of opprobrious words would not necessarily bar first speaker from pleading justification. - Exchange of opprobrious words between two parties immediately leading to

an assault would not under all circumstances bar the party who first used such words from pleading justification. Bagley v. State, 85 Ga. App. 570, 69 S.E.2d 799 (1952). Speaker of opprobrious words entitled to resist provoked assault. - If the assault upon the accused is made with a weapon likely to produce death, and a manner apparently dangerous to life, the fact that the accused provoked the assault by opprobrious words would not put the accused in the wrong for resisting it, so far as is necessary to the accused’s defense; and a seeming necessity, if acted on in good faith, is equivalent to a real necessity. Mitchell v. State, 54 Ga. App. 254, 187 S.E. 675 (1936). Battery cannot be disproportionate to opprobrious words used, and never to the extent of taking life, intentionally or unintentionally where the battery is excessive. Any step beyond proportionate resentment carries one into the mire of unlawfulness, whether there be one or many blows. Collum v. State, 65 Ga. App. 740, 16 S.E.2d 483 (1941). Opprobrious words do not justify homicide. Robinson v. State, 118 Ga. 198, 44 S.E. 985 (1903). Publication in newspaper is no excuse for assault and battery. Haygood v. State, 10 Ga. App. 394, 73 S.E. 423 (1912). Conduct not amounting to justification may be pleaded and proved in extenuation and mitigation of damages. Robinson v. De Vaughn, 59 Ga. App. 37, 200 S.E. 213 (1938). When proof of deceased’s violent and turbulent character is admissible. - Proof of violent and turbulent character of deceased is admissible only when it is shown prima facie that deceased was assailant, that accused had been assailed, and that defendant was honestly seeking to defend self. Ailstock v. State, 159 Ga. App. 482, 283 S.E.2d 698 (1981). Testimony concerning victim’s general reputation for violence is admissible to corroborate testimony of accused that deceased was violent on occasion in question on theory that one with general reputation for violence is more likely to have

been violent toward accused than one with a gentle reputation. Ailstock v. State, 159 Ga. App. 482, 283 S.E.2d 698 (1981). Justification for battery is jury question. - Justification for a battery based on former Code 1933, § 26-1409 is always a question for the jury in each case under all the facts and circumstances adduced on the trial. Collum v. State, 65 Ga. App. 740, 16 S.E.2d 483 (1941). Use of opprobrious words justifying battery is jury issue. - Use of opprobrious words may or may not justify a battery, according to the nature and extent of it, and abusive language will not justify a battery which is excessive and disproportionate to the language used - all of which the jury should determine. Reid v. State, 71 Ga. 865 (1883). Question for jury whether provocation was sufficient or not. Nobles v. State, 12 Ga. App. 355, 77 S.E. 184 (1913). Jury may consider conduct of person assaulted and degree of force justified. - Jury may consider the actions and conduct of the person assaulted at the time of the assault with other facts in determining if force, and what degree of force, on the part of the defendant was justified, and if not justified, what, if any, effect should be given to such facts as in mitigation. Hutcheson v. Browning, 34 Ga. App. 276, 129 S.E. 125 (1925). Failing to charge that plaintiff ’s opprobrious words could justify or mitigate damages. - The court erred in failing to charge the jury upon written request, in an action for damages on account of an assault and battery, that defendant could give in evidence any opprobrious words or abusive language used by the plaintiff to its servant or agent, in order to justify the servant or agent’s conduct or mitigate the damages, and it was for the jury to determine whether such language amounted to a justification or only to a mitigation of damages recoverable. Exposition Cotton Mills v. Crawford, 67 Ga. App. 135, 19 S.E.2d 835 (1942). Duty of court to charge former Penal Code 1895, § 103 (see now O.C.G.A. § 16-5-25) when opprobrious words are relied on as defense; it is obligatory for the court to charge that

section. Buchanan v. State, 100 Ga. 75, 25 S.E. 843 (1896). It was not error to refuse to charge on the ‘‘abusive language’’ defense since defendant was not charged with simple battery and simple battery was not a lesser included offense in the case. Christensen v. State, 245 Ga. App. 165, 537 S.E.2d 446 (2000). Court may determine, as matter of law, that words are not of opprobrious nature where the words used are obviously not of an opprobrious nature, so as to justify an assault and battery. Robinson v. De Vaughn, 59 Ga. App. 37, 200 S.E. 213 (1938).

Court’s discretion to give general charge. - It is not error to fail to give the exact language requested by the defendant when the same principles are fairly given to the jury in the court’s general charge. Rider v. State, 207 Ga. App. 519, 428 S.E.2d 423 (1993). Cited in Taylor v. State, 127 Ga. App. 692, 194 S.E.2d 627 (1972); Aguilar v. State, 240 Ga. 830, 242 S.E.2d 620 (1978); Davis v. State, 153 Ga. App. 528, 265 S.E.2d 857 (1980); Danzis v. State, 198 Ga. App. 136, 400 S.E.2d 671 (1990); Bryant v. State, 226 Ga. App. 135, 486 S.E.2d 374 (1997); In re A.C., 226 Ga. App. 369, 486 S.E.2d 646 (1997).

RESEARCH REFERENCES Am. Jur. 2d. - 6 Am. Jur. 2d, Assault and Battery, § 44. Am. Jur. Proof of Facts. - Liability for Abusive Language, 16 POF2d 493. C.J.S. - 6A C.J.S., Assault, §§ 105, 106. ALR. - What is ‘‘infamous’’ offense within constitutional or statutory provi-

sion in relation to presentment or indictment by grand jury, 24 A.L.R. 1002. Liability of tort-feasor for consequences of act induced by fear aroused by tort, 35 A.L.R. 1447. Insulting words as provocation of homicide or as reducing the degree thereof, 2 A.L.R.3d 1292.