State v. MizeState v. Mize
- Reporters:
- Before:
- Johnston
The opinion of the court was delivered by
Johnston, J.:At thе August term, 1886, of the district court of Cloud county, the appellant was tried on a charge of assault and battery, and was convicted of assault. He appeals, аnd his principal complaint is of the charge of the court. In instructing the jury, the court said:
“ Both of the offenses оf assault and battery, and of assault, are included in the сharge in this case, and if. you find the defendant guilty, he may be convicted of either of said offenses, as the evidеnce may warrant; but if you find the defendant guilty, but entertain a reasonable doubt of which of the said offenses he is guilty, you can in that case only find him guilty of assault.”
This instruction was not аpplicable to the facts proven on the trial, and may have misled the jury in their verdict. *188There was only a single encounter between the appellant and thе prosecuting witness. The appellant admits that he lаid hold of the complaining witness with force and violence, but stated that it was not done until after he was violently аttacked by the complaining witness, and that his action was taken in self-defense and was justifiable. It is stated in the charge of the court that the defendant admitted the forсe and violence, but claimed that what he did was donе in self-defense ; and the testimony makes it clear that if the defendant was not guilty of assault and battery he was not guilty оf any offense. The charge of the court should be adapted to the facts of the case, and the giving of an instruction which goes beyond the facts is liable to mislеad the jury. By the instruction given, the court in effect assumed thаt some testimony had been offered tending to sustain the theory of a simple assault; and the jury, finding no evidence tо support the charge of assault and battery, may have been led by this assumption to find the defendant guilty of an inferior offense not proven. Where there is even slight evidence that the offense committed may have been of a lower degree than the one charged, it is the duty of the court to give the law of such inferior offеnses, but the court cannot properly instruct the jury upоn a degree of the offense which the evidence does not tend to prove. (1 Bish. Cr. Proc., §980; Washington v. The State, 36 Ga. 222.) If the guilt of the defеndant was apparent from the testimony, we might hold the еrror to be harmless; but taking the evidence as it apрears iu the record, it is exceedingly doubtful whether the dеfendant committed any offense. Indeed, the testimony sеems to preponderate in favor of the defеndant’s theory that he acted only in self-defense, and did no more than was necessary to repel an unjustifiablе assault. A perusal of the record leaves the question of the defendant’s guilt iu so much doubt that we are unablе to say the erroneous instruction was not prejudicial to him; and hence there must be a reversal of the judgment.
All the Justices concurring.