State v. Buchan

The principal contention of the defendant is that the court failed to give an instruction on assault and battery as an included offense. From the evidence in the case the jury could have found that the defendant put his arm around the neck of the prosecuting witness and choked him until he became dazed or unconscious, and that in the mélée the prosecuting witness received a cut over the eye from which there was bleeding. This is sufficient evidence to take to the jury the question of assault and battery. The court in its instructions submitted to the jury, as included offenses in the charge…