60 Miss. 268
Miss.
1882
Chalmers, J.,

delivered the opinion of the court.

Appellant was indicted in the statutory form for the murder of her husband, the indictment alleging that she “ wilfully, feloniously, and of malice aforethought killed and murdered ” him. There was no allegation of any assault or battery. Under this indictment she was convicted of an assault and battery with iutent to murder. Upon the comiug in of the verdict she moved in arrest of judgment upon the ground that she could not lawfully be convicted of the offence found, under the indictment preferred, which motion was by the court overruled.

The action of the court was erroneous, as shown by the case of Moore v. The State, 59 Miss. 25. A party can only be convicted of a lesser offence than the one charged where the lesser is specifically charged as constituting part of the higher, or by an added count, where the lower is necessarily included in the higher. Our statutory indictment for mnrder does not embrace in words a charge of an assault, nor is an assault necessarily included in an indictment for murder, since murder may be committed without the commission of an assault, as by laying-poison or digging a pitfall. The point is distinctly presented and decided in the case cited, supra. When the draftsman of an indictment adopts the statutory form of an indictment for murder, he must add a count for assault and battery, if he desires to fall back upon the lesser offence if the party should be acquitted of the greater.

Judgment reversed, verdict set aside, and the appellant remanded, to the custody of the sheriff of Marshall County for such action as by the district attorney may be advised.