State v. Center ( 1925 )

December 8, 1925. The opinion of the Court was delivered by The defendant, Center, along with two others, Luther Redding and Will Redding, was indicted upon three counts: (1) Storing and keeping in possession; (2) receiving and having in possession; and (3) transporting intoxicating liquors. In a separate indictment he was charged with assault and battery with intent to kill.

The two cases were tried together before his Honor, County Judge Ansel, and a jury. In the first case the jury returned a verdict of guilty as to all three defendants; and, in the second case, a verdict of guilty of assault and battery of a high and aggravated nature.

The defendants, Luther Redding and Will Redding, have not appealed; the defendant, Center, has appealed in both cases.

In view of the material distinction between the offenses charged in violation of the prohibition law and the several grades of assault and battery, we are constrained to hold, upon a consideration of the Judge's charge, which will be reported, that he failed to respond to the mandatory injunction of the Constitution, Art. 5, § 26: "Judges shall not charge juries in respect to matters of fact, but shall declare the law."

The judgment of this Court is that the judgment of the County Court be reversed, and that the case as to R.A. Center be remanded to that Court for a new trial.

MR. CHIEF JUSTICE GARY, MESSRS. JUSTICES WATTS and MARION, and MR. ACTING ASSOCIATE JUSTICE R.O. PURDY concur.