Page:Dakota Territory Reports.djvu/382

 who commits any assault and battery upon another by means of any deadly weapon, and by such other means or force as was likely to produce death, with intent to kill any other person, is punishable by imprisonment in the Territorial prison not exceeding ten years."

This section is divisible, contains two clauses and embraces two species of offense punishable alike. The first relates alone to shooting or attempting to shoot at another with any kind of firearms, air gun, or other means whatever, with intent to kill any person. The indictment now before us was framed upon this first branch of the section, and charges an assault and a shooting, "with a certain kind of firearms, to-wit: a pistol, commonly known as a revolver, then and there loaded with gun powder and leaden bullets," with intent to kill him, the said Prank McMahon, charging the intent in proper words.

The second branch of this section has reference to the commission of any assault and battery upon another by means of any deadly weapon, and by such other means or force as was likely to produce death, with intent to kill any other person.

But the jury did not find the defendant guilty of the offense with the commission of which he stood charged. They inferentially acquitted him of that when they found him guilty of an assault "with intent to do bodily harm."

The jury may find the defendant guilty of any offense, the commission of which is necessarily included in that with which he is charged in the indictment, or of an attempt to commit the offense. (See Code of Crim. Pro., § 402.)

This court accordingly held, at the January term, 1876, in the case of The People v. Orris F. Odell, [Mr. Justice delivering the opinion], on an indictment for shooting, with a shot-gun, with intent to kill, that a defendant "may be convicted either of the crime charged, or of an assault or assault and battery with intent to do bodily harm, or for assault and battery, or for a simple assault." In that case, however, the verdict was "guilty as charged in the indictment." No question did or could arise in it as to the proper form of a verdict.