| Ala. | Jan 15, 1846
1. It is by no means a clear proposition, that a judgment may be explained, or even in any way modified, by evidence aliunde ; but conceding the utmost effect to all the evidence touching the discharge of the defendant upon the former indictment, we think it comes to nothing more than is shewn by the first entry, which is that he was discharged without any trial or attempt at trial, for the reason that the prosecutor refused to proceed further with the prosecution. This is, in legal effect, the same thing as a discontinuance, or a nolle prosequi ; which, so far as we are advised, has no where been considered as entitling the prisoner to his discharge. There can be no pretence that any discharge operates as a bar to a future prosecution, when a jury is not sworn and charged with the prisoner. [The State v. Ned, 7 Porter. 187.] There is, therefore, no error in the first charge given by the Court.
2. But in giving the second charge, we think the Circuit Court misapprehended the law with reference to assaults. An assault is defined by Blackstone, to be an attempt or offer to beat another without beating him : [3 Com. 120.] and it seems entirely clear, that when there is no attempt to inflict personal violence on another, there can be no assault. It is laid down that an act, which prima facie, would indicate an assault, may be explained by words spoken at the time, as when one, during assize time, in a threatening posture half drew his sword from its scabbard, and said, if it were not that it is assize time I would run you through the body. This was held to be no assault — the words explaining that the party did not mean immediate injury. [Vin. Ab., Trespass, a, 2.] So, here; although the gun was held in a threatening position, yet if there was neither the attempt to use or the intention to do so, unless assaulted by his adversary, the defendant can in no manner be said to be guilty of an assault. It appears that a fight afterwards ensued, but we are not informed which was the assailant, nor can we undertake to determine that the charge we have just ascertained is erroneous, may not have produced the conviction. As to the other portion of the charge in this connexion, it is unnecessary to be examined, because so far as the case goes, it is not shown
3. The conclusion to which we have already come disposes of the entire case, as presented, except the remark of the Judge to the jury, when it returned for further instructions. What was then said seems to be nothing more than the expression of a truism. If intended to influence the jury, and advise the minority that it was proper to yield their convictions of what the evidence was, to the impressions of the majority, it was erroneous ; but there is nothing stated from which that intention can be inferred, nor was such the necessary effect of what was said.
For the error we have ascertained, the judgment is reversed, and the cause remanded. . The defendant to remain in custody until discharged by due course of law.
(fy’ Decided at June Term, 1845, and omitted by mistake.