State v. Roof

91 S.E. 314, 106 S.C. 281, 1917 S.C. LEXIS 25

Opinion

The opinion of the Court was delivered by

Mr. Justice Fraser.

The appellant was convicted of assault and battery with intent to kill. The errors complained of are in the charge to the jury. The indictment alleged that the appellant cut the prosecuting witness with a knife, while the proof showed that the instrument with which the cutting was done was a razor.

There are three exceptions. The last two raise the same question.

1. “Because the Court erred in refusing defendant’s-writ-' ten request to charge the question of self-defense and character.” The case contains only a portion of the charge.

1, 2 A trial Judge is not bound to charge in the exact Ianguage of the request. If his charge correctly states the law applicable to the case during the charge, he may with entire propriety refuse the charge in the exact language of the request. Only a part of the charge is given, and we must assume that the correct law was charged in the omitted portions. This exception cannot be sustained.

3 2. The only other question is ruling that there was not a total failure of proof, in that the indictment charged that the instrument of injury was a knife and the proof showed that it was a razor. The case of the State v. Jenkins, 48 S. C. L. (14 Rich. 228) 229, 94 Am. Dec. 132, settles the question against the contention of the appellant. In that case it is said:

“If the mode of applying the violence be the same in kind as described, it is enough, though the weapon or instrument used and the part of the body hurt be other than as averred.”

The appeal is dismissed.