John B. Whilden, plaintiff in error, vs. The State of Georgia, defendant in error

Supreme Court of Georgia1858-06

25 Ga. 396

Summary · law.co

Holding. The trial court properly excluded evidence of the first fight because it was not part of the same transaction as the charged stabbing, and the court correctly instructed the jury that it could convict the defendant of assault and battery as a lesser included offense of the stabbing charge. The judgment was affirmed.

A defendant charged with stabbing sought to introduce evidence of a prior fight with the same victim, claiming it was part of the same incident and relevant to his defense. The trial court excluded this evidence. The appellate court upheld the exclusion, finding that the first and second fights were distinct events separated by approximately thirty minutes and the parties had been separated in between, meaning the first fight did not constitute part of the transaction giving rise to the charges and therefore was not admissible.

The defendant also challenged the trial court's instruction allowing the jury to convict him of the lesser offense of assault and battery rather than the charged crime of stabbing. The court rejected this challenge, holding that established legal principles permit juries to find guilt of lesser included offenses when the greater charge encompasses the lesser. Since every stabbing necessarily includes an assault and battery as a component element, the jury properly had the option to return a conviction on the lesser charge.

Summary generated by law.co from the public-domain opinion. The opinion text itself is public domain.

Key issues

Whether evidence of a prior fight is admissible as part of the same res gestae when separated by thirty minutes and a break in contact between the parties
Whether a jury may return a verdict of guilty for a lesser included offense when the indictment charges a greater offense

Procedural posture

The defendant appealed from a conviction by writ of error, challenging the trial court's exclusion of evidence regarding a prior fight and its instruction to the jury regarding lesser included offenses.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion · public domain

majority opinion

By the Court.

Benning, J.

delivering the opinion.

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

The indictment was founded on the second fight.

Unless 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.

Did the first fight make a part of the second ?

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

The parties had been “ separated.”

Floyd, 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.

These being the facts, we think, that the second fight was a new fight, making no part of the first.

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

The 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.

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

One 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,.

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

It 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.

Does the principle apply here ?

Every 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.

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

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

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. Besides, 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.

It was also argued, thatthe 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.

But, in the first place, the record does not show, that the Solicitor 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. We think, then, that the principle applies in this case; and, so thinking, we have to affirm the judgment.

Judgment affirmed.