(dissenting).
I must respectfully dissent.
If the trial court should not have charged the lesser included offense of assault and battery in this case, then there is no meaning to Section 40-2518, T.C.A., which provides as follows:
“§ 40-2518. Charge as to included offenses. — It shall be the duty of all judges charging juries in cases of criminal prosecutions for any felony wherein two (2) or more grades or classes of offense may be included in the indictment, to charge the jury as to all of the law of each offense included in the indictment, without any request on the part of the defendant to do so.”
And Section 39-608, which provides:
“§ 39-608. Included offense under indictment with intent to kill or commit felony. — Any person indicted for an assault with intent to kill, or to commit any other felony, may be found guilty of an assault or assault and battery, as the case may be.”
There was an assault and battery committed by the defendant under the findings of the jury. During the vicious attack the victim was not disturbed in the possession of any of his property until he attempted to swing his arm and the small tool box at his tormentors. His attempt to defend himself against the assault and battery was frustrated by one of the aggressors who grabbed his arm and the tool box was thus torn from his grasp.
Under the undisputed facts it is conceivable that the jury could have found that there was no intent on the *381part of the attackers to steal the tool box, which certainly would not have been as susceptible an item of property to be stolen as the currency the victim had in his undisturbed wallet. It may have been that the unprovoked attack had as its basis simply a warped desire to inflict great bodily harm on the prosecuting witness. In fact, in view of the absence of any attempt to rob the victim of available cash, this seems the more probable conclusion. Without the correct instruction of the court to the effect that the jury could, if it so chose, have found the defendant guilty of an offense that he so evidently committed, it could not do so.
It matters not whether the trial court may have been convinced of the defendant’s guilt of robbery. If, by the evidence, the jury could have convicted of assault and battery, it was the judge’s clear duty to charge the law as to that offense. No judicial discretion is involved, a positive duty being on the court:
“It is also the duty of the Court to define in his charge all the offenses embraced in an indictment for this crime. The jury is the exclusive judge of the facts, the Court is a witness to it of the law. When the jury has heard the facts, it is for it to say what offense, if any, has been committed against the law. However plain it may be to the mind of the Court that one certain offense has been committed and none other, he must not confine himself in his charge to that offense. When he does so he invades the province of the jury, whose peculiar duty it is to ascertain the grade of offense. However clear it may be, the Court should never decide the facts, but must leave them unembarrassed to the jury.” Poole v. State, 61 Tenn. 288.
*382We concede the correctness of the rule as set out in Boling v. State, 219 Tenn. 4, 405 S.W.2d 768, and other cases cited therein and in the State’s brief in which the defense of alibi is relied upon. In those cases there was no dispute from the evidence as to the crime involved, thus, making the sole issue for the jury’s determination whether or not the defendant committed the crime. Under such factual situations there is no necessity to charge lesser included offenses. The evidence in this case, however, did permit an inference of guilt of assault and battery by whoever committed the crime and as stated in Boling v. State, supra:
“Where evidence has been presented at the trial of the cause which permitted an inference of guilt of a lesser included offense * * * a charge on the law applicable to each such offense was mandatory.”
Although there was no evidence introduced on behalf of the defendant as to the circumstances surrounding the crime the evidence adduced by the State presented the jury with basis for conflicting inferences so as to put in issue each of the elements of the felony charged, and those of the lesser offenses included therein, so that it was the province of the jury under proper instructions as to the law, to determine whether the defendant was guilty of any one of such offenses. For this reason the trial court should have charged the law applicable to assault and battery.
In my considered opinion the judgment of the lower court should be reversed and the cause remanded for a new trial with correct instructions.