| Miss. | Oct 15, 1874
delivered the opinion of the court.
The indictment charges an assault with intent to kill and murder. The -jury found the defendant guilty of an assault in attempt to commit manslaughter. If the latter offense is included in the former, the conviction is right. In Brantley v. the State (1850), 13 S. & M., 470, the first count was “with intent to murder”' (as in this case); the second count was for an assault and battery. The verdict was guilty on the second count, and the question was, what, if any, sentence could be pronounced. The conviction was sustained under the statute providing that when the offense charged consists of different degrees, the jury may find a verdict of guilty of an inferior degree of such offense. It was said the
In the construction of this statute, it has been held that the specific intent charged, must be proved. As if it be to '* murder A.”, proof of intent to murder “B.” will not do, for here the intent charged is not supported’ by the proof. Jones v. State, 11 S. & M., 317; Morgan v. State, 13 S. & M., 243-4-5; Barcus v. State, 49 Miss., 18. The very point under discussion was decided in Morman v. State, 24 Miss., 55-6-7, under statutes very similar to those now in force. The indictment charged an assault * * with intent to murder; the verdict was guilty of assault with intent to commit manslaughter. The 33d section of the Penitentiary code, Hut. Code, 960, defined the crime of assault with intent to kill, very much as the present statute, and prescribed the punishment, not to exceed ten years’ confinement in the penitentiary. The 36 art. Hut. Code, 961, provided that any person who. shall be convicted of an asssault with intent to commit * * manslaughter, shall be punished by imprisonment in the penitentiary not exceeding five years. The court determined that the latter crime was not a lesser offense or an offense of lesser degree than the former, because the intent is an essential ingredient in both offenses, and must be proved as laid in the indictment. The rule is that “ the intent with which the act was done must be proved to be the same with that charged.” Thus under 43 George, 3d c. 35, the intent in several counts was to murder, to disable, to do some grievous bodily barm ; the jury found the intent to be to prevent being apprehended; this was held bad. 1 Chit. Crim. L., 233.- So it was ruled in Morman v. State, supra, that a verdict of guilty of an assault with intent to commit manslaughter, was an acquittal of the offense, charged in the indictment, and a conviction of a different and distinct offense, which was notallowed either under the statute or at the common law.
Under art. 305, p. 622, Code of 1867, the same in Code of 1871,
It would follow, that the first assignment of error is well taken, upon the verdict the defendant was only guilty of a misdemanor, and ought not have been sentenced to imprisonment in the penitentiary.
There is nothing in this record from which we can determine, whether there was error or not in refusing the motion for a new trial. No bill of exceptions was taken to that decision of the court. There was also a motion in arrest of judgment, but no decision appears to have been had upon it. Among the grounds set forth in the motion, was that the defendant had been convicted of a misdemeanor but had been sentenced for a felony.
The court erred, as we have seen, in construing the verdict as finding the defendant guilty of a felony and imposing the punishment of imprisonment in the penitentiary. The verdict was good, as guilty of the assault.
The only error committed by the circuit court, was in construing the verdict, as finding the defendant guilty of a felony, and thereupon imposing the punishment of confinement in the penitentiary. The verdict, as we have seen, was good as a finding of guilty of the “assault.”
The judgment will be reversed, but the verdict will stand, and cause will be remanded to the circuit court, to pronounce the appropriate j udgment upon it.