Onе of the defendant’s exceptions is directed to the failure of the court below to charge the jury as to its right to return a verdict of guilty of a less degree of the crime charged in the bill of indictment. In this conneсtion the court charged the jury: “If you are satisfied from the evidencе and beyond a reasonable doubt as to the guilt of the defendant, your verdict will be ‘guilty.’ If you have a reasonable doubt as to his guilt, from all the evidence, you will return a verdict of ‘not guilty.’ ”... And again, “If you are satisfied, and bеyond a reasonable doubt, of his guilt, whether the State proves a motive or not, you will, if you are satisfied beyond a reasonable doubt thаt he is guilty, your verdict will be ‘guilty,’ even though no motive has been proven.”
It was рermissible for the jury under the bill of indictment to return either one of four verdiсts according as they should find the facts to be, to wit: (1) Guilty as charged in the bill оf indictment. (2) Guilty of an assault with a deadly weapon. (3) Guilty of an assault wherein serious injury was inflicted, or (4) Not guilty. Nowhere in the charge does the court undertake to define the lesser degrees of the felony chargеd, or instruct the jury that if it was satisfied beyond a reasonable doubt that the defendant assaulted the prosecuting witness with a deadly weapon, but hаd a reasonable doubt as to the intent to kill, then that it should return a verdict of guilty of an assault with a deadly weapon, nor does the court instruct the jury as to its duty to return a verdict of an assault wherein serious injury was inflictеd if they should fail to find that the defendant used a deadly weapon and should further fail to find that the assault was committed with an intent to kill.
C. S., 4640, expressly prоvides that a defendant may be convicted of a less degree of the same crime, or of an attempt to commit the crime so сharged, or of an attempt to commit a less degree of the sаme crime,
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and procedure under this statute in criminal actions constitutes a well-recognized rule of practice in tbis jurisdiction. When there is evidence tending to support a milder verdict than the one chаrged in the bill of indictment the defendant is entitled to have the different views presented to the jury under a proper charge, and an error in this rеspect is not cured by a verdict convicting him of the crime as charged in the bill of indictment, for in such case it cannot be known whether the jury wоuld have convicted of a less degree if the different views, arising on the evidence, had been correctly presented by the trial cоurt.
S. v. Robinson,
The only evidence of an intent to kill was the evidence of the dеclaration of the defendant that he was going to kill all the Negroes in Leaks-ville and the facts and circumstances tending to show the nature and viciousness of the assault. The probative force and effеct of these circumstances was for the determination of the jury. If the jury was not fully satisfied that the assault was committed with an intent to kill it was yet pоssible for them to return a verdict of guilty of a lesser degree of the crime charged. If the jury rejected the testimony tending to show an alibi and fоund that the defendant in fact committed an assault upon the prosеcuting witness, as its verdict indicates, it may be well understood from the evidenсe in this case — as to the nature and effect of the assault committed — that it would hesitate long before returning a verdict of not guilty. Inadvertently the court below gave it only this one choice.
The failure of thе court to charge the jury as to its right to return a verdict of a less degree of the crime charged, and to explain the law in respect thereto, deprived the defendant of a substantial right, entitling him to a
New trial.