100 Ga. 75 | Ga. | 1896
1. If, on the trial of an indictment for assault and battery, it is manifest that -the defense relied upon was the use by the person assaulted to the accused of opprobrious words or abusive language, immediately before the beating occurred, it is the duty of the court, even without a request so to do, to give in charge to the jury the provisions of section 103 of the Penal Code; and unless the record shows to the contrary, it will he presumed that this was done.
2. It will not, however, he presumed that the proper instructions upon this subject were not given to the jury merely because the trial judge refused to give in charge a request which, though probably intended to invoke in behalf of the accused the law embraced in the above cited section, was not itself couched-in apt or appropriate terms.
-4. It is bad practice to allow a member of a jury who had retired to consider of their verdict in a criminal case, to he withdrawn for the purpose of aiding the solicitor-general in striking a jury in another criminal case in which the juror was the prosecutor; but where this was done within the knowledge of counsel for the accused in the case first mentioned, and he did not then and there -move for a mistrial or otherwise seek a correction •of the irregularity, he cannot, after taking the chances -of an .acquittal, complain of such irregularity. The question whether or not the withdrawal -of the juror would, under the circumstances of the present case, have been cause for a mistrial, is not presented for determination. Judgment affirmed.