Denny Bagley was convicted of an assault and battery upon the person of W. B. Terhune. Bagley's motion for a new trial was denied, and that judgment is assigned as error. The evidence was conflicting, but, as conceded in the brief of counsel for Bagley, it was sufficient to authorize the verdict.
In special grounds 12, 15, 16, and 17 of the motion for new trial, complaint is made that the court in different parts of its charge to the jury referred to the prosecutor Terhune as "the person assaulted." In each of said grounds, such reference is assigned as error in that it was a statement by the trial judge that Terhune had been assaulted, when the evidence as to whether Terhune had been assaulted was conflicting, and that issue of fact should have been submitted to the jury. We think that those grounds are meritorious and require another hearing of the case, since the evidence as to whether Bagley had assaulted Terhune or whether Terhune had assaulted Bagley was in sharp conflict.
Under all the facts of the case, the other special assignments of error show no cause for a new trial.
Judgment reversed. MacIntyre and Gardner, JJ.,concur.
DECIDED SEPTEMBER 8, 1945.