Commonwealth v. Herr

Schaeffer, J.,

This is a rule for a new trial. The sole question to be determined in this proceeding is whether a conviction can be sustained, where a defendant is charged with assault and battery by automobile, on an indictment alleging that the prosecutor was injured, if the evidence fails to show any such personal injury. The evidence admittedly does not show that prosecutor sustained any personal injury as alleged in the indictment. The court in its charge to the jury said: “You must, therefore, find beyond a reasonable doubt from all the evidence, and it is your duty to remember it as you…