On thе opening day of the 1974 dove hunting season, defendant was cited by Officers Morris and Veach for *621 violation of two hunting regulations: hunting with an unplugged gun and hunting under the influеnce of intoxicating beverages. Defendant’s conduct in allegedly resisting the officers’ attempt to issue these citations led to his being indicted fоr the additional charges of: (1) simple battery upon Officer Morris by biting him with his teeth; (2) simple battery upon Officer Veach by kicking him with his feet; and (3) obstructing a law enforcement officer in the lawful discharge of his official duties by biting Officer Morris and kicking Officer Veach, after his arrest.
A single trial conducted on all five сharges resulted in defendant’s conviction on the two hunting violations and the obstruction charge and his acquittal of the two battery charges. Various errors are asserted on appeal. Held:
1. Defendant asserts that the guilty verdict on the obstruction charge is inconsistent with and repugnant to his acquittаl on the battery charges. He argues the state was required to prove that he obstructed the officers, as alleged, by biting Officer Morris and kicking Officer Veach. But since the jury acquitted him of the battery charges predicated upon these same acts, the manner in which the obstruction allegеdly occurred was necessarily decided in defendant’s favor. Thus, defendant concludes, his obstruction conviction cannot stand.
"The determinativе factor in such cases is whether the acquittal of one charge necessarily includes a finding against a fact that is essential to conviction for the other charge. If so, the evidence is then insufficient to support a verdict of guilty in the convicted charge.”
Conroy v. State,
Are the allegations as to biting and kicking facts which are essential to defendant’s conviction for obstruction? The state argues that the offense of obstructing an officer mаy be committed in various wáys so that it is not restricted to proof of the manner alleged in the indictment. We disagree. To permit the prosecution to prove that a crime was committed in a wholly different manner than that specifically alleged in the indictment would subject the accused to unfаir surprise at trial and
*622
constitute a fatal variance under the standards enunciated in
DePalma v. State,
Our conclusion is buttressed by the decision reached undеr the analagous factual setting presented in
Hancock v. State,
In the case sub judice, the jury’s finding that defendant committed no battery upon the officers by biting or kicking them precludes a finding that defendant obstructed the officers by committing these same disproved acts. Since defendant’s acquittal on the battery charges conclusively negates the manner in which the obstruction of the officers was allegedly committed, defendant’s conviction for obstruction must be reversed.
2. Defendant asserts error upon the following instruction: "I charge you also, that it is illegal in this state to do any kind of hunting while under the influence of any intoxicating liquors, wines, beers or other drugs. I charge you that it is not necessary that a person be drunk in order to be in violation of that statute. It is necessary that he be under thе influence to the extent that it would make it less safe for him to hunt than it would have been had he not been under the influence to any extent whatsoevеr.”
*623
The above charge was patterned after a similar instruction frequently given in prosecutions for operating a motor vehicle under the influеnce and approved in this context
in Flanders v.
State,
3. After deliberation by the jury for a considerable length of time, the trial judge gave additional instructions which stated in part: "[Y]ou should take this case and work еven justice between the State and the defendant in this case without fear, without favor, without bias, without prejudice, without sympathy. As you attempt to work оut even justice, those of you who believe in God and believe in the Good Book as this Court does, you must realize that the justice that you work out is man made justice, and, consequently, is full of imperfections since man himself is imperfect. We all know that there will be a perfect justice, and that will be еternal justice, but in order to obtain that justice, we will have to die and depart this life and none of us are in a hurry to do that. So, take this case, remеmber that it can’t be perfect justice. It’s man made justice, and do even justice between the parties if you can and let the chips fall where they may. With those instructions, the Court will let you go back and deliberate further.”
In defending this instruction against defendant’s attack that it is burden-shifting, the state’s brief recites: "Said instruction is fair, appropriate, proper, rational, reasonable, sensible, wise, just, equitable, right, and good. It is beautiful. It is filled and infused with the soul and spirit of fairness, reasonableness, goodness, and righteousness. It would be difficult if not impossible to formulate or deliver a better instruction. What could be better than human 'even justice’? The question answers itself — nothing possibly could be better except solely and only Divine Perfect Justice which is not available on Earth but which is available only in Heaven . . . Even though perfect justice exists only in Heaven, if there is on Earth a perfect instruction, surely and certainly this must be that perfect instruction.” (Appellee’s brief, page 11).
We are unable to give our blessing to the court’s language, which might have beеn more appropriately *624 delivered from a pulpit than from a judicial bench. The language used, and particularly the reference tо "even justice,” could well encourage compromise verdicts or inconsistent verdicts, as were returned here.
While we decline to bestоw our countenance upon this charge, we do not believe that the instruction was sinfully burden-shifting so as to require a reversal of defendant’s conviсtions for the hunting violations. The jury was fully instructed on defendant’s presumption of innocence and the state’s burden of proof. In addition, defendant admitted both violations in his trial testimony. Under these circumstances, any error in the charge must be deemed harmless.
4. The evidence presented by the statе, together with defendant’s testimonial admissions, were more than sufficient to support the jury’s verdict with respect to the hunting violations.
5. The defendant’s remaining enumerations, challenging portions of the court’s charge, are palpably without merit.
6. For the reasons expressed in Division 1, defendant’s conviction of obstructing an officer is reversed. The convictions for hunting with an unplugged gun and hunting under the influence are affirmed.
Judgment reversed in part and affirmed in part.