Strickland v. State

Citation25 S.E. 908,98 Ga. 84
PartiesSTRICKLAND v. STATE.
Decision Date13 January 1896
CourtSupreme Court of Georgia

Syllabus by the Court.

1. Upon the trial of an indictment for assault with intent to murder alleged to have been committed with a knife, it was not error to refuse to charge: "If there be great superiority in physical strength of an assailant who strikes another a blow with his fist, or ill health in the assailed at the time, or other circumstances producing relatively great inequality between them in combat, the assailed can justifiably resent the blow by stabbing the assailant." The principle sought to be embodied in the request would not in any case be applicable, unless the antagonist, having the superior strength, unlawfully assaulted the other, and even in that event the jury, and not the judge, should determine whether such assault could lawfully be defended by stabbing.

2. Although the written request, as submitted, was defective for the reasons above given, and was therefore properly refused yet, inasmuch as, under the facts disclosed by the record the question of inequality in physical strength was involved, and the sole defense relied upon as a justification for the stabbing was that the accused was physically unable to otherwise defend himself from the prosecutor's alleged unlawful assault upon him, the court erred in not giving in charge, even without a request, the principle which the request presented sought to express.

Error from superior court, Madison county; Seaborn Reese, Judge.

K. D. Strickland was convicted of assault with intent to murder, and brings error. Reversed.

E. T. Brown and R. H. Kennebrew, for plaintiff in error.

W. M. Howard, Sol. Gen., for the State.

ATKINSON J.

1. The request to charge, upon the refusal of which error was assigned, was defective for two reasons: It left entirely out of consideration the question as to whether or not the assault was lawful. Whatever may have been the relative difference in sizes, if the smaller person offer to the larger such an insult as justifies a battery, and a battery not disproportioned to the offense given be committed the person assailed cannot justify, upon such provocation, the use of a deadly weapon, nor can the person assailed under any circumstances justifiably resent a blow by stabbing. Stabbing may, under some circumstances, be justified as a measure of prevention, but never as a measure of resentment. It may be justified when done to prevent the infliction of a present impending...

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