52 A.2d 230 | Pa. Super. Ct. | 1947
Argued March 10, 1947. Defendant was tried and convicted on an indictment containing two counts. The first count charged assault and battery and the second aggravated assault and battery. The jury returned a general verdict of guilty. On this appeal, complaint is made of fundamental error in the charge of the court.
An examination of the record discloses that the learned trial judge not only failed to instruct the jury as to the distinction between assault and battery and aggravated assault and battery, but nowhere in the charge was any mention made of the offenses for which the defendant had been indicted and for which he was being tried.
In that connection, all the court said was: "This boy said he was struck with a wrench. If you think it was necessary to strike him with a wrench and that he was struck with a wrench, you would have to say this man wasn't guilty. But you have to go pretty far to justify him being struck with a wrench. Yet it is for you to say. I will leave the matter with you." What actually happened was that the prosecuting witness, James Lawless, referred to by the court in its charge as "this boy," went to a used car lot operated by the defendant at Broad and Butler Streets, Philadelphia, to *486 complain of the unfair treatment he allegedly had received in a used car transaction with the defendant. After a heated argument, the defendant ordered Lawless off the lot and as testified by Lawless: "I still didn't make any attempt to move. I wanted to try to talk to him. He got out of his car and went to his toolshed right alongside of his office and brought out a wheel wrench. . . . He poked me in the side with it. When he did that I went to turn around to get out of there, and I did trip some place and I went down."
This would be sufficient evidence to sustain a conviction of assault and battery, but certainly not of aggravated assault and battery. Aggravated assault and battery is defined in the Penal Code of 1939, June 24, P.L. 872 § 709, 18 P.S. 4709, as follows: "Whoever unlawfully and maliciously inflicts upon another person, either with or without weapon or instrument, any grievous bodily harm, or unlawfully cuts, stabs or wounds any other person, is guilty of a misdemeanor. . . ." The essential ingredients of grievous bodily harm or unlawful cutting or wounding are entirely lacking in the instant case.
On charges of minor misdemeanors, explicit instructions as to the nature of the offenses are not always essential; Com v.McDermott,
In Com. v. Kocher, 15 Berks 278, 4 Pa. D. C. 678, in a well considered opinion by ENDLICH, P.J., a new trial was granted where, in the trial on an indictment in two counts upon charges of assault and battery and aggravated assault and battery, the trial judge failed to explain to the jury the nature and character of the crime of aggravated assault and battery. The court said: ". . . the charge to the jury was brief and general in its terms and may for that reason have failed to carry *487
to the jury such instructions as it would have been proper to give in detail, and the effect of such instruction might conceivably have been to reduce the verdict of guilty so as to convict the defendant of simple assault and battery. If so, the question being for the jury and not for the court, there was error in the charge; and, as it cannot be declared with certainty that that error was harmless, there is no choice left but to set the verdict aside and order a retrial: R.R. Co. v. Bock,
In Com. v. Gold,
And in Com. v. Tracey,
The second and third assignments of error are sustained. The judgment is reversed and a new trial awarded.