| Miss. | Oct 15, 1911
delivered the opinion of the court.
Appellant was indicted and convicted for an assault and battery with intent to kill and murder Ellen Carroll. The proof showed that he shot at Ellen, bnt failed to hit her, and that, consequently, he was guilty of an assault with intent to kill and murder, and not of an assault and battery with intent to kill and murder. The error complained of is that the court, in effect, charged the jury, for the state, that if they believed from the evidence; beyond a reasonable doubt, that appellant was guilty of assault with intent to kill and murder, they should find him guilty as charged in the indictment, thus convicting him of the battery, as well as of the assault. In so far as this instruction charged the jury to find appellant guilty as charged in the indictment, it was erroneous; but this error was perfectly harmless, and could not have prejudiced appellant. It requires no citation of authority to support the statement that, under an indictment for an assault and battery with intent to kill and murder, a conviction can be had for assault with intent to kill and murder. The latter crime is necessarily included within the former. This being true, had the court concluded its charge with a direction to find appellant guilty of an assault with intent to kill and murder, and the jury had so found, both the charge and verdict would have been correct. The crimes of assault, and assault and battery with intent to kill and murder, are mere statutory forms of attempt to commit murder, are both created by the same statute, and the punishment for each is the same. The jury, by their verdict under the instruction complained of, necessarily found the existence of facts which show that appellant was
It follows, therefore, that the error complained of was harmless, and this court has “full many a time and oft” held that it would not reverse a judgment for an error not prejudicial to the party complaining. The case of Montgomery v. State, 85 Miss. 330" court="Miss." date_filed="1904-11-15" href="https://app.midpage.ai/document/montgomery-v-state-7989270?utm_source=webapp" opinion_id="7989270">85 Miss. 330, 37 So. 835, in which the court’s attention seems not to have been directed to the fact that the error was harmless, in so far as it conflicts herewith, is overruled.
Affirmed.