133 N.W. 330 | N.D. | 1909
On the 3d day of December, 1907, the defendant was informed against by Alfred M. Kvello,- state’s attorney of Ransom county, for the crime of assault and battery with a dangerous weapon, upon the person of one Claude Bearfield. The jury returned a verdict finding the defendant guilty of assault and battery. Judgment was 'entered on the verdict, and this appeal taken therefrom.
The defendant claimed whatever he did was in self-defense, and that Bearfield was the aggressor. Error is assigned upon the admission of testimony offered by the state as to the reputation of
Several errors are assigned to the charge of the court, only one of which we shall notice, which is as follows: “A battery is any unlawful or willful use of force or violence- upon the person of another.” Battery is defined by our Code to be any willful and unlawful use of force or violence upon the person of another. The error urged in this instruction is the use of the disjunctive “-or” instead of the conjunctive “and” between the words “unlawful” and “willful.” This instruction was, we think, erroneous. The assault and battery, to constitute the crime, must be both willful and unlawful, not either willful or unlawful. Alston v. State, 109 Ala. 51, 20 South. 81. In that case the court said: “An instruction that ‘the least touching of another person, willfully or in anger, is a battery’ is vitiated by the disjunctive ‘or,’ since touching one willfully is not sufficient to constitute a battery.” The charge to the jury must include every element of the offense. If not defined in the language of the statute, the other language used must set forth the essential constituents of the offense to which the charge relates. 12 Cyc. 612; State v. Goldsberry, 66 Neb. 312, 92 N. W. 906; State v. Lindley, 8 Tex. App. 445.
On account of the errors hereinbefore stated, the judgment is reversed, the verdict of the jury set aside-, and a new trial awarded the defendant.