Wicker v. State

Cook, J.,

delivered the opinion of the court.

At a former day of this term this case was affirmed, but in looking over the record we are unable to give a reason for the affirmance. Appellant was tried on an affidavit charging him with an assault and battery, if we ignore the averment that the assault and battery was “feloniously” made, which we think it proper to do. The evidence shows that appellant called the man assaulted “a damn liar,” whereupon the man to whom this epithet was applied struck appellant, and appellant returned the blow, and a general fist fight ensued.

At the request of the state this instruction was given by the court:

“If the jury believe from the evidence beyond a reasonable doubt that the defendant provoked the difficulty with an insult, although Wardell struck the first blow, then you should find the defendant guilty, provided you believe that the defendant struck Wardell with his fist, and threw him to the ground.”

We think it was error to give this instruction, because it takes away from the jury the right to “determine whether such words were or were not a sufficient excuse or justification” for the assault and battery made by Wardéll upon the defendant. Section 1501, Code of 1906.

The court also erred in refusing to give this instruction requested by defendant, viz:

“The court charges the jury, for the defendant, that insulting words do not constitute an assault, and if the jury believe from the evidence beyond a reasonable doubt that Wardell struck the defendant the first blow, and afterwards defendant defended himself with no more force than was necessary to ward off the attack, as he had a legal right to do, then the jury must find the defendant not guilty. ’ ’

For the errors mentioned, the suggestion of error is sustained, the judgment is reversed, and the cause remanded.

Reversed and remanded.