
    2364.
    Hardaway v. The State.
   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 assault 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.  