State v. Summers

charging the jury:

The prisoner is charged with having committed an assault and battery on Elizabeth M. Jones, the prosecuting witness, on the public highway between Clayton and Duck Creek in this county a short time after eight o’clock on the evening of October twentieth last, when she was going home alone in a carriage.

There is not much the court should say to you in their charge, because the question to be determined is one of fact only, viz., whether the prisoner committed the assault and battery charged in the indictment.

[1] We may say that an assault is an unlawful attempt by violence to do injury to the person of another, and that a battery is the consummation of the attempt—the infliction of the injury.

If one person unlawfully and with force or violence strikes, *16seizes, holds or chokes another, any such act constitutes an assault and battery. If, therefore, you believe from the testimony, beyond a reasonable doubt, that the prisoner seized, choked or held the prosecuting witness as alleged, your verdict should be guilty. If you do not so believe, your verdict should be not guilty.

The state claims that the prisoner forced himself into the carriage in which the prosecuting witness was riding, seized her by the throat, put one of his hands under her clothes and attempted to drag her from the carraige; that she fought and resisted the prisoner to the extent of her power and screamed as loudly as she could, and before he had succeeded in pulling her from the carriage he ran away.

[2] The prisoner’s defense is what is known in the law as an alibi; which means that the prisoner was elsewhere than at the place where the crime is alleged to have been committed. Testimony adduced to establish an alibi should, together with the other testimony in the case, be considered by the jury in reaching their verdict. In order that the defense of alibi may be effective, the jury should be satisfied from the testimony that the prisoner was not at the place where the alleged assault and battery was committed, at the time it was committed, and that he could not, therefore, have committed the offense charged. An alibi will not avail as a defense unless the jury are satisfied by reliable and credible testimony that the prisoner could not, because of his absence, have committed the offense for which he is being tried.

[3] It will be your duty gentlemen to reconcile the testimony if you can, because it is conflicting, and if you are unable to reconcile and make it consistent you must decide what part of the testimony is credible and worthy of belief and what part is unworthy of belief.

In doing this you have a right to consider the appearance and manner of the witnesses in giving their testimony, any interest witnesses may have in the result of the trial, and any other facts or circumstances disclosed by the testimony which show the reliability or unreliability of their testimony.

*17This case is very important both to the state and to the prisoner, and you will, we are sure, give it careful and serious consideration.

[4] If after carefully and conscientiously considering all the testimony you believe beyond a reasonable doubt that the prisoner committed the offense charged in the indictment your verdict should be guilty.

But if, after such consideration of the testimony, you entertain a reasonable doubt of the prisoner’s guilt, your verdict should be not guilty.

We say to you, however,. that by a reasonable doubt the law does not mean a mere possible or speculative doubt, but .a real, substantial doubt, and such a doubt as fair-minded men would feel constrained to entertain after carefully considering all the evidence in the case.

Verdict, guilty.