State v. Kemp

Citations

• 120 La. 378
• 45 So. 283
• 1907 La. LEXIS 658

Syllabus

<p>1. Criminal Law — Instructions — Evidence to Sustain — Law Not Applicable Should Not be Given.</p> <p>The judge should state the law applying. He should not be called upon to instruct the jury that a defendant may be found guilty of a mere assault if there is no evidence of assault in the case. The same is true of assault and battery, particularly if the indictment does not include the offense.</p> <p>[Ed. Note. — Eor cases in point, see Cent. Dig. vol. 14, Criminal Law, §§ 1980-1985.]</p> <p>2. Same — Degree oe Crime.</p> <p>“The law of each degree which the evidence tends to prove should be given, but not of any degree which it does not tend to prove.” 1 Bishop (3d Ed.) p. 980, cites numerous decisions in support of his text. See, also, Matthew’s Case, 111 La. 962, 36 South. 48.</p> <p>[Ed. Note. — Eor cases in point, see Cent. Dig. vol. 14, Criminal Law, §§ 1923-1925.]</p> <p>3. Same — Continuance.</p> <p>The defendant had not used due diligence to procure a witness.</p> <p>The statement of the judge, as incorporated in the bill of exceptions, renders it evident that the defendant had no right to a continuance.</p> <p>Monroe and Provosty, JJ., dissenting.</p> <p>(Syllabus by the Court.)</p>