
    PEOPLE v. FORSHEE.
    Assault and Battery — Self-Defense — Instructions — Relative Physical Strength.
    In prosecution of 19-year old boy for assault and battery upon 13-year old girl whose bicycle he had taken without her permission, injured it and caused her to become angry and throw stones at him, instruction to jury that, in determining whether the force used by him was actually in self-defense, jury could take into consideration the respective physical strength of the parties held, proper, where defendant had interposed claim of self-defense.
    Appeal from Tuscola; Cramton (Louis C.), J.
    Submitted April 13, 1939.
    (Docket No. 104, Calendar No. 40,194.)
    Decided June 5, 1939.
    Lloyd Forshee was convicted of assault and battery.
    Affirmed.
    
      jHerbert W. Smith, for defendant.
   McAllister, J.

Palmarie Spencer, 13 years old, lives with her mother in the village of Fairgrove. With another girl, she went one spring evening to the home of Evelyn Forshee, age 11. The girls had bicycles and were planning to ride about the village. Evelyn went indoors to get her coat and Palmarie went with her. When they came out again, Palmarie’s bicycle had disappeared. Down the street, she saw Lloyd Forshee, defendant herein, riding it around the corner. The girls tried to follow him, but he turned and rode around the block. Finally he came back and left the bicycle in a driveway across the street. When Palmarie found it, the handle bars were bent. She was angry, and as she was taking it home, she picked up a stone and threw it at Forshee, hitting him on the back of the shoulder. He told her he would slap her if she threw another stone. She picked up a second stone and threw it at him, missing him. He then seized her, struck her’ three times in the face while holding her, and kicked her in the shins. Another boy, Arlington Robinson, came up at the time, grabbed Forshee, and made him let the girl go. When she arrived home, the child was crying, her lip was swollen up, and there was a bruise on the back of one of her legs where she had been kicked. Forshee was arrested, charged with assault and battery, and tried in justice court, where he was found guilty, and appealed to circuit court. Defendant claimed that after the girl had hit him the first time, she threw another stone at him and he thereupon told her that he would slap her if she did it again. He testified that she had another stone in her hand and that he was obliged to act in self-defense. Forshee was between 19 and 20 years old, and, at the time of the trial, was working as a baker. Palmarie was a little girl, 13 years old. The trial court submitted the case to the jury and they found defendant guilty of assault and battery. He was sentenced to serve 90 days in jail or pay a fine of $50.

The only assigned error is upon the following portion of the charge to the jury by the trial court:

“In determining whether the force used in this case was actually in self-defense, was actually for the purpose of protecting himself, you may take into consideration the respective physical strength of the parties.”

Such instruction is in accord with the well-recognized rule of evidence, applicable in cases of assault and battery, where the claim of self-defense is made. 6 C. J. S. p. 987. There was no error on the trial.

Judgment affirmed, with costs to plaintiff.

Butzel, C. J., and Wiest, Bushnell, Sharpe, Potter, Chandler, and North, JJ., concurred.  