Bradford v. State

White, Presiding Judge.

The charge in the indictment in this case was an aggravated assault committed by an adult male upon a female. Numerous objections are made to. the charge of the court, and several exceptions were reserved to certain paragraphs of the same as well as the refusal to give special instructions requested for defendant.

To begin with the charge, it is quite voluminous and is not confined to the issue made by the indictment and proof, which was solely the question of an assault by an adult male upon a female, but it gives in extenso almost the entire chapter of the Penal Code with reference to assaults and batteries, and the various circumstances which elevate them in degree to aggravated assaults, as well as the enumerated statutory cases in which the violence used would not amount to an assault. It is most clearly obnoxous to the objection that it is not limited to the case made; but it is not specially excepted to on this ground. The exceptions reserved relate to special portions, and we propose only to notice some of them.

In the closing paragraph, this language is used: “The jury are instructed to have due regard to a broken and violated law and the probability of inflicting an unjust punishment upon an innocent party.” The first portion of this instruction is clearly erroneous in assuming that the law had been broken and violated, and is manifestly calculated to iujure the rights of appellant.

Another instruction which was* requested by defendant, but. which was given with modifications by the court, is objected to because vague, misleading and contradictory. As shown in the bill of exceptions it is in these words: “Before you can find the defendant guilty as charged in the information, you must believe beyond a reasonable doubt that the acts done by the defendant at the time of the commission of the assault were the acts of preparation on the part of the defendant to have illicit, unlawful and improper connection; that is, that unlawful handling of the privates, or attempt to handle the privates, of the party alleged to be injured with the party assaulted.” We are of opinion this instruction is vague, indefinite and uncertain, if not entirely meaningless in the latter clause.

Another special exception is reserved to the court’s addition to the following instruction: “An aggravated assault and battery may be committed by any indecent handling or fondling of the person of a female by an adult male, without her consent and against her will;” which was a part of a special instruction asked by defendant, and to which the court added the words “submitted by the court, and the jury will please be governed thereby.” We are of opinion the addenda of the court was improper, and calculated to impress the jury that in the court’s opinion such a case had been made out against the defendant. The statute provides that when special instructions are requested “the court shall either give or refuse these charges with or without modification, and certify thereto, and when the court shall modify a charge it shall be done in writing and in such manner as to clearly show what the modification is.” (Code Crim. Proc., art. 679.) The addenda made by the court was not a modification, and in giving a charge without modification the courtis only required to write upon it "given,” or "given as requested,” and then certifiy thereto by signing the same officially.

Opinion delivered June 23, 1888.

For the errors pointed out, the judgment is reversed and the cause remanded.

Reversed and remanded.