1. If, on the trial of an indictment for assault and battery, it is manifest that -the defense relied upon was the use by the person assaulted to the accused of opprobrious words or abusive language, immediately before the beating occurred, it is the duty of the court, even without a request so to do, to give in charge to the jury the provisions of section 103 of the Penal Code; and unless the record shows to the contrary, it will he presumed that this was done.
2. It will not, however, he presumed that the proper instructions upon this subject were not given to the jury merely because the trial judge refused to give in charge a request which, though probably intended to invoke in behalf of the accused the law embraced in the above cited section, was not itself couched-in apt or appropriate terms.
Submitted October 8, Decided October 19, 1896. Indictment for assault -and battery. Before Judge Mil:ner. Catoosa superior court. February term, 1895. Buchanan was indicted for assaulting 'and -beating Culler; and after conviction, excepted to the- refusal of a .new trial. It appears, that Bucbanan went with Hooker to ■Culler’s house to see him about his oo-wb getting into a field ■which Buchan'an had subrented to Hooker. While there Mrs. Culler accused Buchanan of hurting her cow; which, •he denied, and Hooker admitted having done it -by throwing a rock at the animal. Buchanan, Hooker and Culler ■then started to- go- to- the field in question, to- look at the fence enclosing it; and on the way Culler began to- talk ;about a cow which he had long previously sold to- Buch.an-an, and for -which he h'ad never received all the purchase price. An excited conversation on this subject ensued, •during which Buchanan several times averred that this cow ■was roguish and -a fence breaker, -and said he could prove it by twenty-five men. Thereupon, according to -Chiller’s-testimony: “I told him, whoever said -that she was either-roguish or a fence breaker when I let him have her, and that whoever said she got over my fence more- than twice, told a life. He then hit me with his fist, and said, Tt’s a lie, it’s a lie, it’s a lie,’ as he struck me. . . I am an old man; . . defendant is a young man.” Hooker testified, that Buchanan did not hit -Culler with his fist, but with the back of his fingers, his hand being open.*76:3. There was no error on such trial in refusing to charge as follows: “The law allows one to strike another for the use of opprobrious words and obscene language to him, leaving it to the jury to-judge whether the beating is in excuse of the provocation used or given; that is, whether the beating is excessive is for determination of the jury.” A failure of the court “to give such instruction” as that embraced in the language above quoted “anywhere in the general charge,” was not erroneous, and does not raise any presumption of a failure to give proper instructions in this connection.
-4. It is bad practice to allow a member of a jury who had retired to consider of their verdict in a criminal case, to he withdrawn for the purpose of aiding the solicitor-general in striking a jury in another criminal case in which the juror was the prosecutor; but where this was done within the knowledge of counsel for the accused in the case first mentioned, and he did not then and there -move for a mistrial or otherwise seek a correction •of the irregularity, he cannot, after taking the chances -of an .acquittal, complain of such irregularity. The question whether or not the withdrawal -of the juror would, under the circumstances of the present case, have been cause for a mistrial, is not presented for determination. Judgment affirmed.
The motion for a new trial alleges, in addition to- the-general grounds, that the court erred in refusing to give to-the jury, on request of defendant, the- instruction set forth in the third head-note-; and failed to give such instruction, anywhere in -the general charge. Also, error in permitting the solicitor-general, without-the consent of defendant or his counsel, to- withdraw Will- ■ b'anks, -one of the jurors trying this case, fro-m the jury-room after -they had retired to- make their verdict, to assist-the solicitor-general in striking a jury in -the- -case of The-State v. James Phipps, charged with burglary, in which case Willbanks was prosecutor. This ground is supported 'by the affidavits of defendant and his counsel. The State-presented affidavits by Willbanks and -the- solicitor-general, showing that after the jury in this case had retired the-Phipps -case was called for trial, and the solicitor-general stated to- the court, in the presence and hearing of Ool. Mann (who was -counsel f-o-r the defence in both of the ■ oases), that he wanted Willbanks, the prosecutor, to assist in striking the- jury; whereupon the court instructed the ■ bailiff in charge- of the jury to tell Willbanks to- come into ■ court for this purpose. He came, and after -being so- engaged for two- or three minutes, Oo-l. Mann stated to tbc court that he did not want to- be considered as consenting ■ to Willb-anks’ absence from the jury The solicitor-general stated that he had understood 'Col. Mann so- to- consent, but requested Willbanks to return to- the jury-room, which he? did immediately; raid after considerable deliberation tibe jury agreed upon a verdict of guilty. During his absence from the jury-room nothing- was said by or to him about the Buchanan case. 'W. E. Mam, for plaintiff in error. A. W. -Fite solicvtor-gemral, by A. S. Johnson, contra.