dissenting. I can not agree with the majority of the court in their opinion in this case, except as to the ruling stated in the first headnote. The evidence for the State was uncontradicted and unimpeached, and, if believed, demanded a verdict of guilty as charged. If the statement of the defendant was true, he should have been acquitted. There is no middle ground; and, in my opinion, it was error requiring the grant of a new trial for the judge to charge the jury on assault and battery. Gibson v. State, 10 Ga. App. 117 (72 S. E. 944).