Barrett v. State

The general rule is, that where an erroneous charge is given, and there is no statement of tacts, the charge will be deemed to have been a harmless abstraction. Where a defendant, indicted for a common assault and battery, and fined one hundred dollars by the jury, excepted to the charge of the judge instructing them that if they found that the defendant committed the assault with a whip, they must "find him guilty of an aggravated assault, and assess the punishment appropriate to that degree of assault and battery, specifying it; there being neither a statement of facts, and it not appearing that this was all the charge which was given by the judge on the trial, it will be presumed that an appropriate charge for a common assault and battery was given in addition to the charge excepted to; and that the jury found the defendant guilty of a common assault and battery.

Appeal from Nacogdoches. Tried below before the Hon. A. W. 0. Hicks. Indictment against the appellant filed January 11th, 1859, charging him with an assault and battery upon Elliot R. Mims, committed on the first day of June, 1858. The indictment charged that the defendant upon said Mims “ did make an assault, and him, the said Elliot R. Mims, then and there did beat, wound, and ill-treat, and other wrongs to him the said Elliot R. Mims then and there did, to the great damage of him, the said Elliot R. Mims.” On the trial the judge charged the jury that if the assault was committed with a whip, the jury should find the defendant guilty of an aggravated assault and battery, and assess his punishment by fine not less- than one hundred dollars, nor more than one thousand dollars; and in addition to the fine imposed bythem, they might in their discretion imprison the defendant, (quoting the language of the code defining the punishment for an aggravated assault.) To which charge the defendant excepted. The judge signed and approved a bill of exceptions, presenting the above charge. The defendant offered the following instructions: “ if the jury believe from the evidence that Barrett showed by the manner of using the whip, that he had no intention to degrade Mims, as by using the butt end of it to strike, as with a stick, the defendant would not be necessarily guilty of an aggravated assault and battery.” Which the court refused to give. The record contains neither statement of facts nor the charge of the court, further than has been stated. The verdict of the jury was in the follow • ing terms: “We the jury find the defendant guilty and assess the fine at one hundred dollarsupon which the-judgment of the court was accordingly rendered. The appellant assigned as error the charge given by the judge excepted to, and already stated.