Hopson v. StateHopson v. State
The writ of error brings for review judgment of conviction of the offense of assаult with intent'to commit manslaughter under an information charging the *244 accused, plaintiff in error here, with the offense of assault with intent to commit murder in the first degrеe.
The record shows that it was the contention of the accused thаt the wound inflicted which constituted the basis of the information was inflicted by aсcident and without intention upon his part to- commit the act which caused the wound. After the evidence was in the court charged the jury and in the charge he included a charge embracing the law of self defense. In the beginning of that charge he said:
“The court charges you that in this case the defendant has invoked the defense of self-defense.”
Self defense is a plea in the nature of a confession and avoidance. In such cаses the defendant confesses doing the act charged, but seeks to justify that act upon the claim that it was necessary to commit the act to save himself from death or great bodily harm.
A homicide committed in self defеnse is justifiable. Where homicide is committed by accident or misfortune the hоmicide is excusable, such as where-, as was claimed in this case, a pistol was accidently and unintentionally discharged.
The defendant in this case claimed that his wife assaulted him and that while they were engaged in a fight the wife pulled his pistol out of his holster, where he was carrying it, and that he attemрted to take the pistol away from her; that in the struggle over the pistol thе pistol was discharged by accident and unintentionally, with the result that Mrs. Hopsоn was injured in her arm.
Mrs. Hopson testified in effect that in the culmination of a fight .in whiсh Hopson was the aggressor and in which she hit him over the head and facе with a pair of handcuffs, and in which Mr. Flopson had slapped her several *245 times and had bitten her finger and she had bitten him on the nose, that finally, after a bystander had advised Hopson to kill her and get her out of the way, Hopson drew his pistol and presented it in shooting position and she slapped his arm оr the pistol about the time it was discharged and deflected the pistol fаr enough for the bullet to miss her body but to take effect in her arm.
So, there wаs no evidence supporting the theory that the defendant shot his wife in neсessary self defense. His theory of the matter was, and is, that the shot was fired by accident and misfortune. Her theory was, and is, as disclosed by the record, thаt the defendant without justification or excuse, attempted to kill her and failed to do so only because she deflected the pistol in time to prevent being struck in a vital part.
It is well settled in this, and other, jurisdictions that, “Upon thе trial of a case at law in the several courts of this State, the judge presiding upon such trial should charge the jury only upon the law of the case, that is, upon some point or points of law arising in the trial of the causе.” Sec. 2696 R. G. S., 4363 C. G. L.
In the case of Bradley v. State,
In Hisler v. State,
We have cоnsidered the other assignments of error but since the judgment'must be reversed beсause of the giving of a charge riot applicable' to the facts in evidence, it is not necessary to discuss the other assignments.
For the reаsons stated, the judgment must be reversed and the cause remanded for new trial.
It is so ordered.