Hardaway v. State

Court of Appeals of Georgia

Hardaway v. State

67 S.E. 222, 7 Ga. App. 555, 1910 Ga. App. LEXIS 381

CourtCourt of Appeals of Georgia

DecidedMarch 11, 1910

Docket2364

StatusPublished

This text of 67 S.E. 222 (Hardaway v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Hardaway v. State, 67 S.E. 222, 7 Ga. App. 555, 1910 Ga. App. LEXIS 381 (Ga. Ct. App. 1910).

Pincite

Opinion

Hill, C. J.

Where the defendant was on trial for assault and battery, and there was no allegation and no evidence that the person alleged to have been assaulted and beaten was an officer of this State, or was a * person duly authorized to execute any lawful process, or that the as[556]*556sault and beating was committed in obstructing or resisting an officer or person so authorized, in the execution of lawful process, it was erroneous to give in charge §306 of the Penal Code (as to the offense of obstructing an officer attempting to execute lawful process), and to instruct the jury to convict if they believed beyond a reasonable doubt that the assault and battery was committed by the defendant in resistance to a lawful arrest. It was necessarily prejudicial to the defendant to be thus placed in the attitude of resisting a lawful arrest, when there was neither allegation nor proof upon which to base the instruction. The lack of allegation might be immaterial, but the lack of proof is fatal. Judgment reversed.

Accusation of assault and battery; from city court of Griffin.— Judge Flynt. December 13, 1909.

Submitted February 21, — Decided March 11, 1910. W. E. II. Searcy Jr.} for plaintiff in error. W. H. Beck, solicitor, contra.

Free access — add to your briefcase to read the full text and ask questions with AI

Hill, C. J.

Where the defendant was on trial for assault and battery, and there was no allegation and no evidence that the person alleged to have been assaulted and beaten was an officer of this State, or was a * person duly authorized to execute any lawful process, or that the as[556]*556sault and beating was committed in obstructing or resisting an officer or person so authorized, in the execution of lawful process, it was erroneous to give in charge §306 of the Penal Code (as to the offense of obstructing an officer attempting to execute lawful process), and to instruct the jury to convict if they believed beyond a reasonable doubt that the assault and battery was committed by the defendant in resistance to a lawful arrest. It was necessarily prejudicial to the defendant to be thus placed in the attitude of resisting a lawful arrest, when there was neither allegation nor proof upon which to base the instruction. The lack of allegation might be immaterial, but the lack of proof is fatal. Judgment reversed.

Accusation of assault and battery; from city court of Griffin.— Judge Flynt. December 13, 1909.

Submitted February 21, — Decided March 11, 1910. W. E. II. Searcy Jr.} for plaintiff in error. W. H. Beck, solicitor, contra.

Cite This Page — Counsel Stack

Bluebook (online)

67 S.E. 222, 7 Ga. App. 555, 1910 Ga. App. LEXIS 381, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hardaway-v-state-gactapp-1910.