Whilden v. State

¶1By the Court.

¶2delivering the opinion.

¶3The first question is, was the Court below right in rejecting the testimony offered as to the first fight.

¶4The indictment was founded on the second fight.

¶5Unless the first fight made a part of the second; that is, unless it was a part of the res gestae, it is clear, that evidence of it, was not admissible. If not a part of the res gestae, the first fight could not possibly constitute a defence in a case founded on the second.

¶6Did the first fight make a part of the second ?

¶7The Judge certifies, “that both witnesses distinctly stated the interval between the first and second fights, to be half an hour.”

¶8The parties had been “ separated.”

¶9Floyd, the party assaulted in the last fight, was at the time of that assault, with his pantaloons down, undergoing an examination of the wounds received by him in the first fight.

¶10[1.] These being the facts, we think, that the second fight was a new fight, making no part of the first.

¶11Consequently, we think, that the Court was right in excluding evidence of the first fight.

¶12The indictment was for stabbing. On such an indictment, were the jury at liberty to find a verdict of guilty of an assault and battery? The Court told the jury that they were. This is the only other question.

¶13It is laid down by Lord Hale as a general principle, that *399the jury “ may find the defendant guilty of part and not guilty of the rest.” 2 Hale’s Pleas of the Crown, 302.

¶14One of his examples is this; “if a man be indicted upon the statute of 1 Jac. of stabbing contra formam statuti., the jury may acquit him upon the statute, and find him guilty of manslaughter at common law.” Id. Ibid,.

¶15There can be no doubt, that the general principle laid down by Lord Hale is true.

¶16It is every day’s occurrence for the jury, on an indictment for murder, to find the defendant guilty of any species of manslaughter — even the slightest, and that species does not amount to a felony.

¶17Does the principle apply here ?

¶18Every case of stabbing includes the case of an assault and battery; that is to say, an assault and battery makes a part of every ease of stabbing.

¶19Why then should not the principle apply to the case of stabbing ?

¶20Because, as it is said, the judgment for the assault and battery, would not be a bar to another indictment for the stabbing.

¶21[2.] But* we think it would. It would show the party already convicted of a part of that which would go to make up the whole case of stabbing, namely, the assault and battery part, and that case deprived of this part, would really cease to be a case of stabbing; for there cannot be a case of stabbing, that does not include an assault and battery.

¶22Besides, this argument lies equally in the cases in which, beyond question, it is true, that on an indictment for the greater offence, there may be a verdict for the lesser.

¶23It was also argued, that'the Solicitor General has no right, on an indictment for stabbing, to elect to have the defendant tried for an assault and battery only; and the reason given was, that, thus, the defendant would suffer in the number of his peremptory challenges.

¶24But, in the first place, the record does not show, that the *400Solicitor General made any such election as this: in the next, though it may be true, that the defendant would lose in respect to his peremptory challenges, yet, it is also true, that, in other respects, he would gain far more than a compensation; he would gain exemption from the chance of being punished as a felon in the Penitentiary.

¶25[3.] We think, then, that the principle applies in this case; and, so thinking, we have to affirm the judgment.

¶26Judgment affirmed.