Wilson v. State

THOMAS, J.

Where an indictment or warrant charges an assault and battery loith a knife, the evidence, in order to sustain a conviction, must show that the offense was committed with a knife or other instrument falling within its class. — Walker v. State, 73 Ala. 18; Huckabee v. State, 159 Ala. 49, 48 South. 796; Crenshaw v. State, 153 Ala. 7, 8, 45 South. 631. This is true because the indictment or warrant, in such case, with unnecessary particularity describes the offense, thereby making the means by which it was committed material and narrowing the field of proof to an assault and battery committed by such means. Of course, on the other hand, if the indictment or warrant omits such allegation and charges simply an assault and battery, the offender can be convicted under it, whether the proof shows that the act was committed with or without a knife or other weapon. In the present case the defendant was tried before the judge of the laAV court of Pike county upon affidavit made before and warrant issued by a justice of the peace of said county, made returnable to said court, charging the defendant with the offense of “assault and battery with a knife.” On the trial the evidence was in conflict as to whether the assault and battery sought to be proved was with or without a knife. Unless the jury believed from the evidence beyond a reasonable doubt that it-was done with a knife, then the defendant Avas entitled to an acquittal; for Avithout this the offense proved was not the offense ■charged.

The court, in its general charge to the jury to Avhich ■exception Avas duly taken and reserved by defendant’s •counsel, instructed them “that the charge of assault and battery Avith a knife embraced also the charge of a simple assault and battery, and that in this case they could find the defendant guilty of either assault and battery Avith a knife or of a simple assault and battery, as in their judgment the testimony warranted.” We are of ■opinion that the court erred in this, as Avell as in refusing Avritten charges Nos. 1 and 2, requested by defendant; and Ave cannot say that this error was not injurious. — Walker v. State, supra, and authorities before ■cited. There Avas a general verdict of guilty of assault .and battery and a fine assessed by the jury of $12.50; the smallness of it indicating that they did not believe a knife was used in the assault and battery.

The judgment of the court below is therefore re-A7ersed, and the cause remanded.

Reversed and remanded.