Page:North Dakota Reports (vol. 3).pdf/190

 vs. .

Opinion filed February 21st, 1893.

Conviction of Lesser Crime, Than Charged.

Comp. Laws, § § 6479, 6480, 6491, 6492, 6510, 7429, construed. Held, on a trial for the crime of assault and battery committed with a deadly weapon, "with intent to kill," the accused, under § 6510, Comp. Laws, may be convicted of an assault and battery, armed with a dangerous weapon, “with intent to do bodily harm." The commission of the latter is necessarily included in the commission of the former, within the meaning of § 7429, supra.

Verdict—Weapon Not Named—Assault and Battery.

Where the accused was charged with an assault and battery when armed with a deadly weapon, “with intent to kill,”” and the verdict was for “assault and battery with intent to do bodily harm, as charged in the information," Actd, the verdict will warrant a conviction for assault and battery only. ‘The weapon with which an assault is committed is an essential feature of the crime defined by $6510, supra. ‘The jury failed to find the weapon, and the ommission is fatal to a conviction for felony.

Acquittal of Greater Offense.

The following words found in the verdict, ‘‘as charged in the information,” are ambiguous, and cannot be resorted to for the purpose of showing that the assault and battery was committed a dangerous weapon, in view of the fact that the effect of the verdict is to acquit the accused of the offense “charged in the information.”

Error to District Court, Cass County; McConnell, J.

Charles Johnson was indicted for assault with intent to kill. The Jury found him guilty of assault with intent to do bodily harm. He was sentenced for the first named crime, and brings error.

Judgment modified.

Taylor Crum, for plaintiff in error.

''Robt. M. Pollock'', State's Attorney, for defendant in error.

, J. Plaintiff in error was tried and convicted in the District Court upon an information charging him, in effect, with feloniously committing an assault and battery, while armed with a deadly weapon, “with intent to kill.” The verdict is as follows: “We the jury, find the defendant guilty of the crime of assault