The instant case in which appellant appeals from a
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conviction for simple battery developed from a melee in an eating establishment. While waiting in a customer line for service a young white female complained to her husband that one of five young black males who had come into the place had "pinched” her. A white male in the line pointed out the defendant as the offender. The accused denied the charge. A fight followed. The end result of the altercation at the restaurant was arrests and trials of the negroes. See
Morehead v. State,
The instant trial began with appellant facing four misdemeanor charges. Three of these accused Mize of having committed simple battery upon the prosecutrix, her husband and the bystander. The fourth charge was his alleged use of abusive language. The last accusation was dismissed upon defendant’s motion and the court granted a directed verdict of not guilty for the defendant on the charges involving the husband and bystander. Defendant was found guilty by the jury on the charge of having committed simple battery upon the wife in that he did "intentionally cause physical harm to” her.
In this appeal we are required to pass upon three enumerations of error.
1. The first assignment states "The court erred in refusing to grant defendant’s motion for directed verdict, in that the accusation charging the defendant with simple battery alleged the defendant caused physical harm to (prosecutrix) while the evidence, under the State’s testimony showed a contact of an insulting or provoking nature.”
The crux of this contention is that the probata did not follow the allegata. The accusation charged defendant to have committed "simple battery” in that he did "intentionally cause physical harm to [prosecutrix].” Thus, the state undertook to prove that defendant violated subparagraph (b) of Criminal Code, § 26-1304. That section in its entirety reads as follows: "A person commits simple battery when he either (a) intentionally makes physical contact of an insulting or provoking nature with the person of another, or (b) intentionally causes physical harm to another.”
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Appellant relies upon such decisions as
Smith v. State,
The testimony of the prosecutrix was that she was "grabbed in the side” or that someone "squeezed her hip.” (T. 11). On cross examination she defined the contact as "a pinch” (T. 27) and further as "having felt a hand on her side” (T. 28) or someone having grabbed her side and "squeezed it” (T. 29). Whether the prosecutrix was grabbed, squeezed, or pinched, the act constituted conformance with the charge that defendant did "intentionally cause physical harm.” See
Goodrum v. State,
This enumeration of error is not meritorious.
2. The second enumeration of error complains of the refusal to permit defense counsel on voir dire to ask the following question: "If there is a conflict in the evidence in what the witnesses who are white testify, and the witnesses who are black testify, will this in any way affect your ability to serve in this case fairly, affect your ability to have an open mind, to be completely impartial?” (R. 3). The trial court’s ruling was error in light of the recent decision of the United States Supreme Court in Ham v. South Carolina,
Where, as here, all witnesses for the state, including prosecutrix, were white and all defense witnesses, including accused, are black, it is proper on voir dire to ask questions dealing with racial prejudice of the jurors in order to test their impartiality.
Bowens v. State,
3. Defendant’s third enumeration of error contends the trial court erred in charging on justification. Since such charge was actually beneficial to the appellant, we would regard it as harmless error, even though it would have been appropriate as to the general melee. See
Johnson v. State,
Judgment reversed.
Notes
There was a split among the nine justices as to bias against beards with a majority sustaining the trial court’s denial of such query.