Aldrige v. State

Chalmers, C. J.,

delivered the opinion of the court.

The appellant was indicted for an assault with intent to murder one D. S. Thomas, and convicted of an assault and battery. The verdict is supported by the testimony of Thomas alone, that of all the other witnesses making out a case of self-defence. The difficulty occurred at a social gathering. The appellant, while engaged in the house in some innocent diversion, was called out by Thomas in an angry manner and accused of having circulated lies to his detriment. Angry words ensued, and presently Thomas, according to his own admissions, struck the appellant in the face. The blow was repeated ; and at last the appellant cut Thomas with a pocket knife, which he drew from his pocket. Thomas states that he himself had no weapon, but six other witnesses testify that he not only had a drawn knife in his hand, but that he was striking at the appellant with it when himself stabbed. By the fifth instruction for the State the jury were told that, if the defendant entered into a mutual fight with Thomas having upon his person any danger *255 ous weapon, and that such weapon was not exposed to view, so as to put Thomas upon his guard, and that in said fight he struck Thomas with said knife, intending to kill or injure him, then, the jury should find him guilty as charged, or guilty of an assault and battery, or of an assault only, as the facts may warrant.

This charge was improper, under the facts of the case, without some qualifications. A mutual combat is one into which both parties enter willingly, as the jury were informed by other charges given in the case. A man who is stricken with the fist may enter willingly into the combat, supposing that it is to be prosecuted without deadly weapons, but if in its progress his adversary resorts to such weapons, he may lawfully do the same, if it be necessary to protect his own life, and the fact that he had such weapon concealed on his person will not deprive him of this right, unless the jury believe from the evidence that he went into the fight intending from the first to resort to his weapon if it became necessary thereby to overcome his adversary. Other instructions given for the State contained this limitation of an original intention of resorting to the weapon in case of need, but the one under consideration does not. It broadly lays down the proposition, that any resort to an unexposed deadly weapon, in eases of mutual combat, will constitute murder in the event of death, though there was no previous intent of using the weapon, and though he who had brought on the combat by giving the first blow, had himself resorted to the use of such weapon. The injustice of such a rule is made manifest by the facts of this case. That Thomas provoked the difficulty both by words and blows is plain, even from his own testimony. He denied that he had a weapon, but that he did have one, and was about to use it, is shown by the testimony of several witnesses. If this be true, the appellant had the right to use any means necessary to preserve Ms own life, provided he had nothing to do with bringing on the fight save to strike when he was stricken, and entered into it with no intention of taking life with a weapon of which Ms adversary had no warning.

It is suggested by the Attorney General that, though the instruction be wrong, it will not constitute error, because of the *256 fact that the appellant was acquitted of the charge of assault with intent to murder, and convicted only of an assault and battery, and that therefore the laying down of an erroneous test as to the higher crime will not vitiate a conviction of the lower, as to which no improper test was prescribed. But it will be observed that the charge concludes by instructing the jury that they will find the accused guilty as charged, or guilty of an assault and battery, or of an assault only, as the evidence may warrant. It is erroneous therefore in a double aspect, both as laying down an improper rule as to the higher offence, and as improperly applying this rule to the lower. It was well calculated to mislead the jury in'the consideration of both aspects of the crime charged, because, while it had no real connection with the inferior offence, it was apt to be misconstrued by the jury into a declaration by the court that the use of the knife was disproportionate to the attack made upon the defendant.

By his eighth charge the appellant sought and obtained a correct definition of the term “ mutual combat,” used in several of the preceding charges on both sides. By his tenth charge he sought by a recital of ■ the facts in evidence, from his standpoint, to apply this definition to the case before the jury. The court refused to give this last charge upon the ground that the law was sufficiently and correctly embraced in the former charge on the same subject. The same thing occurred with reference to the doctrine of what constitutes reasonable apprehension of great bodily harm. By his seventh instruction the appellant sought and obtained a declaration from the court that, in the consideration of the ease, they should as far as possible put themselves in the defendant’s place at the time of the occurrences, and judge from that standpoint whether, from the facts by which he was surrounded, he had sufficient reason to apprehend a present purpose to do him some great bodily harm. By his thirteenth instruction the appellant asked the court, by a summary of the evidence which he recited, as he contended that it was, to inform the jury that they might consider these facts, if they believed them to exist, as warranting a belief on the part of the defendant that he was in apparent danger. This charge *257 was refused by the court, not because not warranted by the evidence, or as announcing an improper exposition of the law, but because the principle was already sufficiently contained in the seventh instruction. We infer from this action that the learned judge was of opinion that where a party has obtained a correct exposition of the law governing a particular point in his case, he cannot insist upon a concrete application of the legal principle to the facts in evidence, and a declaration from the court that these facts, if believed by the jury to have been established, call for the application of the principle. We do not concur in this view. We think that a party has a right to a statement both of the principles of law controlling his case, aud of a specific application of the principle to the facts in evidence. It would undoubtedly be better to embrace both propositions in one charge, because more likely in this form to guide to a proper application of the law to the facts by the jury; and the court would perhaps be justifiable in insisting that this should be done, but if counsel have embodied the legal principle in one charge, and the concrete application of it in another, the court is not thereby authorized in wholly rejecting either. Certainly, if called upon to elect between them, both court and counsel should prefer that one which makes a specific application of the law to the evidence rather than that which states the principles generally, and in an abstract form.

The twelfth charge asked by the appellant should have been given. It announces that it is not unlawful to carry a pocket-knife, and that no invidious deductions are to be drawn therefrom in- the present case, unless the jury should believe from the evidence that the defendant had the knife for the purpose of using it in some contemplated difficulty, and if they further believe that it was only used when he was driven to it by the aggressions of Thomas, and in his own necessary self-defence from a murderous assault, then they should find him not guilty. We see no reason why this instruction should not have been given, and it was certainly-applicable to the facts of the case as deposed to by several witnesses.

Reversed and new trial granted.