
    Baldwin vs. State.
    Stabbing, from Terrell. Criminal Law. Stabbing. Punishment. (Before Judge Chrke.)
   Blandford, J.

1. On the trial of a person charged with stabbing another, not in his own defence, or under other circumstances of justification, it was error for the court to charge as follows : “If the evidence satisfies you that defendant gave the first insult and struck Jowers, the prosecutor, the first blow, the defendant cannot be justified for defending himself against the blows from Jowers with his fist by cutting Jowers, although you may believe at the time of the cutting there was inequality of strength or other circumstances of advantage in favor of Jowers and against defendant, unless the defendant had, in good faith, waived or endeavored to abandon the fight, or there was actual necessity to defend himself from serious injuryand also as follows : “If defen•dant and Jowers agreed to fight and did so, or went into the fight by ■mutual consent, defendant could not legally defend himself against ■blows from Jowers with his fist by cutting him, although there might have been, at the time of the cutting, circumstances producing relative inequality between them, unless, before the cutting, the defendant had, in good faith, waived or endeavored to abandon the fight, or was under absolute necessity to do so to prevent serious injury.’’ These charges were calculated to withdraw from the consideration of the jury any circumstances of justification which may have been shown, such as inequality in strength, age, weight or size, the exact position of the parties when the stabbing was done and the character of the blows inflicted by the prosecutor. Cobb’s Dig. 789; Code, §4369.

W. D. Kiddoo, for plaintiff in error.

■J. H. Guerry, solicitor general, for the State.

2. Where the law fixes the punishment of an offence as a fine not to exceed one thousand dollars, a fine within that limit is within the ■discretion of the judge, and is not the subject of review.

Judgment reversed.

Hall, J., concurred.

•Jackson, C. J., dissented.  